THE AFFORDABLE CARE

ACTRuth Colker

Distinguished University ProfessorThe Ohio State University

Moritz College of Law

President’s signature President

Obama signed ACA into law with the strokes of 22 pens on March 23, 2010.

Supreme Court Decision (June 28, 2012)

Upheld most of Affordable Care Act in a 5-4 decision Anti-Injunction Act did not bar suit before Act

went into effect Not valid under Commerce Clause But valid exercise of Congress’ taxing powers

Medicaid rules violated Spending Clause Remedy: Give states option whether to opt in

Many Uncertainties Will states create exchanges or force federal

government to create an exchange for their state? Odd federalism dynamics!

Will states agree to expand Medicaid? Will financial incentives on employers cause

more of them to offer employer-based health insurance?

Will financial incentives for individuals cause more of them to purchase health insurance?

Will premiums rise or fall by virtue of new minimum requirements for health insurance?

What does ACA already do?:

Insurers: Cannot deny coverage of children under the age of 19

based on pre-existing conditions. Cannot rescind coverage based on a review of the

original application after someone gets sick. Cannot impose lifetime dollar limits on essential

benefits, like hospital stays. Must cover certain services without charging a

deductible, co-pay or coinsurance. Preventive care and wellness visits, immunizations and

some types of counseling and testing Long list of preventive services for women including

contraception

More Each state (or HHS) must create a pre-existing

condition insurance plan for those who have been uninsured for at least six months because of a pre-existing condition.

Young adults are allowed to stay on their parents’ plan until they turn 26 years old (unless young adult is offered insurance at work). Those who choose to stay on parents’ plan could potentially

be those who need insurance, creating a selection risk issue States are able to receive federal matching funds for

covering some additional low-income individuals and families under Medicaid for whom federal funds were not previously available.

Rebates 85 % of all premium dollars collected by insurance

companies for larger employer plans must be spent on health care services or health care quality improvement.

80 % of the premium must be spent on benefits and quality improvement for plans sold to individuals and small employers.

If costs are too high, then must provide rebates to consumers. There has been some confusion about whether money

must be returned to consumer or employer can use funds for wellness programs for all employees, because of language about “quality improvement.”

Seniors

Provides a one-time, rebate check of $250 to seniors who reach the gap in Medicare prescription drug coverage known as the “donut hole.”

Seniors who reach the coverage gap will receive a 50 % discount when buying Medicare Part D covering brand-name prescription drugs.

Seniors receive free preventive services under Medicare. (That’s similar to rule for all insurance plans.)

2013 Rules Employers must distribute a Summary of

Benefits & Coverage to employees Employers must report the value of

health benefits on employees’ W-2 forms by January 2013

$2,500 limit on employee contributions to health Flexible Spending Accounts

Requirement for employers to notify employees of the availability of health insurance exchanges

What ACA Will do in 2014?

Prohibit discrimination due to pre-existing conditions or gender

Eliminates annual limits on insurance coverage Tax credits for those whose income is between

133 % and 400 % of the poverty line who are not eligible for other affordable coverage.

Can buy health insurance through an Exchange.

Will have to pay a tax penalty if health insurance is available and affordable but has not been purchased by individual.

Definition of Affordable “Affordable” employer

provided health insurance is defined as the individual option being less than 9.5 % of employee’s household income If that is true, then expected

to buy the FAMILY plan No premium tax credits or

cost sharing subsidies available

Tax Credits and Subsidies Tax credits for insurance premium:

Contribute no more than 2 % AGI towards health insurance if less than 133 % of federal poverty line

Contribute between 2 and 9.5 % of AGI if 133 to 300 % of federal poverty line

Contribute no more than 9.5 % if 300 to 400 % of federal poverty line

No premium tax credits if over 400 % of federal poverty (but can take deduction if health costs above 10 % of AGI) or eligible for public coverage (Medicaid, CHIP, Medicare or military coverage)

Cost sharing subsidies ranging from $604 (225 % of federal poverty line) to $4834 (125 % of federal poverty line) for things like deductibles, coinsurance Cost sharing subsidy phases out at 225 % of federal poverty line

whereas premium credit phases out at 400 %

Medicaid If states elect to participate:

Americans who earn less than 133% of the poverty level ($14,000 for an individual and $29,000 for a family of four) will be eligible to enroll in Medicaid.

States will receive 100% federal funding for the first three years, phasing to 90 % in subsequent years.

Health Care Exchanges Who are they available for?

Primarily serve individuals buying insurance on their own Small businesses with up to 100 employees can also buy

insurance through Small Business Health Options Program (SHOP)

What are rules governing insurance under exchanges? Minimum basic coverage Limits on out of pocket expenses

Scope of Insurance Mandate

Employers with more than 50 employees All individuals, unless:

Religious objection; undocumented immigrant; incarcerated; member of an Indian tribe

Family income is below threshold requiring you to file a tax return

You have to pay more than 8 % of your income for health insurance, after taking into account any employer contributions or tax credits

You were insured through Medicare, Medicaid, CHIP, military insurance, employer plan, or purchased insurance

Penalty for being without health insurance

2014: $95 per adult and $47.50 per child (up to $285 for a family) or 1.0% of family income, whichever is greater

2015: $325 per adult and $162.50 per child (up to $975 for a family) or 2.0 % of family income, whichever is greater

2016 and beyond: $695 per adult and $347.50 per child (up to $2085 for a family) or 2.5 % of family income, whichever is greater CBO estimates average annual premium for individual

would be $4,500 – 5,000 and for a family would be $12,000 - $12,500 (equivalent to 2.5 % for 4-person family with income of $50,000).

How ACA Affects Businesses

Small employers (fewer than 50 workers): Imposes no new requirements Provides new health insurance alternatives

through state-based Small Business Health Options Program (SHOP) exchanges If they offer insurance, may achieve some

savings State has option of combining small

employer and individual exchange

Small Business Tax Credit Tax credits became available in 2010 to

offset a portion of the purchase of health insurance by low-wage employers with 25 or fewer workers. Tax credits up to 35 percent of the employer’s

premium contribution available to an eligible employer until 2014

Credits of up to 50 percent of the employer’s contribution will be available for two consecutive years as of January 1, 2014, for coverage purchased through the exchanges

Coverage by Small Businesses IF do provide coverage (voluntarily), they

must limit waiting periods to no more than 90 days and eliminate lifetime and annual benefit limits.

IF offer dependent coverage then must make that coverage available for workers’ adult children up to age 26 (with no requirement that employer contribute to that coverage).

AND may not have pre-existing condition exclusions for children covered by health insurance

New Plans sold in the small group market

Required to meet essential benefit requirements

Must be rated consistent with rating limits in the law

Must limit deductibles to $2,000 for single coverage and $4,000 for family coverage

Annual cost sharing limited to the current law for Health Savings Account limits ($5,959 for single coverage and $11,900 for family coverage in 2010)

Grandfathered Plans Need not meet essential eligibility requirements BUT will have to meet those requirements if

terminate current plan and purchase another one HOWEVER, can allow family members of enrolled

individuals to enroll without jeopardizing grandfathered status

AND can allow new employees of employer to join Grandfathering will, in the short term, help firms

that currently have an advantage in risk-rated insurance market But if they purchase a new plan then new rules will likely

increase expense of plan because part of larger risk pool

Free Choice Vouchers Rule available to employers in all size groups:

An amount equivalent to what the employer would have contributed to the firm’s plan on behalf of such a worker

Voucher allows worker to apply that amount toward the purchase of coverage through a nongroup insurance exchange

Worker using these vouchers are not eligible for premium subsidies in the exchange

No penalties will apply to employers providing them.

Medium-Size Employers (50 to 100 workers)

If has NO insurance policy: Assessed $2000 per full-time employee, excluding the first 30

employees, who receives a subsidy through the exchanges If DOES have insurance but that insurance would require a

contribution of more than 9.5 percent of employee’s income AND employee purchases insurance through an exchange (with a subsidy) then: Assessed $3,000 for each employee getting a subsidy or $2,000

per full-time employee, whichever is less. Currently, 19 % of workers opt out of their employers’ health plans

Requirement to provide insurance or pay penalty applies to employees who work 30 hours per week (or more) Some employers may push back hours to go under 30 hours to

avoid coverage requirement

Medium-Size Employers Can purchase insurance through

Exchanges Can also benefit from “grandfather”rules

so long as they retain their health insurance policies

Large Employers (more than 100 workers)

Same penalties as for medium size firms if an employee chooses a subsidized, exchange option

Same penalties if do not provide insurance (but 98 % do)

Until 2017, can purchase insurance through exchanges Beginning in 2017, that rule is up to the states

Rules for Insurance Offered by Large Employers

These prohibitions do apply: Preexisting conditions exclusions Recissions Lifetime and annual benefit limits

Therefore, large employers will likely need stop-loss insurance if they self-insure

These rules do NOT apply: Rating rules Essential benefits minimums Limits on deductibles

Self-Insured Plans Considered “self-insured” if ANY portion

of benefits result from self-insurance. These obligations DO NOT apply:

Comprehensive coverage for health benefits package

Essential health benefits requirements Prohibition of discrimination based on salary Annual limitations on deductibles for

employer-sponsored plan Guaranteed issue and renewability of

coverage

Employers with more than 200 full-time workers

Employer must automatically enroll all full-time workers and all previously enrolled workers into a plan each year Workers will have the opportunity to opt out if

they choose This rule applies to regular insurance as

well as self-insurance plans

Prescription Drug Change in Rules for Retirees

The Medicare Modernization Act of 2004 provides subsidy payments to corporations equal to 28 percent of their costs for retiree prescription drug benefits

Payments for retiree health benefits are tax deductible for the firm But ACA no longer allows firms to deduct the 28

percent subsidy they were receiving from federal government as part of their health care expenses

Firms have taken a “write down” to reflect this change ($1.0 billion by AT&T alone) because the 28 percent deduction was previously taken as an “asset.”

2018 Forty percent excise tax on “high-cost”

plans This tax will apply to the total cost of health

coverage of an active or retired employee exceeding certain annual cost thresholds

Many employers will hit the excise tax threshold unless they take steps to cut costs or lower their cost increases

The tax of these “Cadillac plans” was delayed until 2018. So who knows what really happen by 2018.

Problems People who earn between 100 and

133 percent of poverty guidelines will not be entitled to subsidies to buy insurance under assumption they would move to Medicaid.

If employer offers “affordable” individual plan, and have family, then must buy family plan (or be subject to penalties). But family plan might be terrifically

expensive. Only assistance is deduction if

expenses above 10 % of AGI

How ACA affects Children’s Health Insurance Program

Children currently covered by CHIP between 100 % and 133 % of poverty would be transitioned to Medicaid

CHIP is funded through 2015, with increased federal match

CHIP eligible children (6 to 19 years old) who cannot enroll in the program due to federal allotment caps must be screened to determine if they are eligible for Medicaid and, if not, would be eligible for some new tax credits

Longterm Care

Establishes the Community First Choice Option in Medicaid to allow states to provide community-based attendant supports and services to individuals with incomes up to 150 % FPL with disabilities who require an institutional level of care through a state plan amendment.

Provides states with new options for offering home and community-based services through a Medicaid State Plan Amendment rather than through a wavier for individuals with incomes up to 300 % of the maximum SSI payment

Creates the State Balancing Incentive Program to provide enhanced federal matching payments to eligible states to increase the proportion of non-institutionally-based long-term care services.

Extends the Medicaid Money Follows the Person Rebalancing Demonstration program through 2016

Conclusion

Uncertainty: Will states go through with threat not to

participate in Medicaid expansion? If so, will individuals in those states become

eligible for premium credit and cost sharing subsidies?

Will all states set up Exchanges (eventually if not immediately)?