Tag Archives: separation of powers

Obama administration shocking decision to drop individual mandate — but only for some

I’m going to have to wait until tomorrow to say much more, but the Obama administration issued a shocking decision late today to exempt those who had individual policies cancelled this year from the individual mandate contained in the Affordable Care Act.  The Wall Street Journal apparently broke the story.  Here is the New York Times article.  Here is a Washington Post article from a strong Affordable Care Act supporter. Here is the Huffington Post article. Here’s Fox News. (CNN has yet to publish anything I can find on the subject) Not surprisingly, the insurance industry has already protested the apparent move. “This latest rule change could cause significant instability in the marketplace and lead to further confusion and disruption for consumers,” said Karen Ignagni, president of America’s Health Insurance Plans, the industry’s main trade group.

A copy of the decision, made thus far only in a letter from Secretary Kathleen Sebelius to six senators (all of whom are apparently facing tough re-election battles) is here.

Excerpt from Sebelius letter to senators
Excerpt from Sebelius letter to senators


The purported legal basis for the exemption comes in 26 U.S.C. 5000A(e)(5), which reads:

(e) Exemptions

No penalty shall be imposed under subsection (a) with respect to— …

(5) Any applicable individual who for any month is determined by the Secretary of Health and Human Services under section 1311 (d)(4)(H) to have suffered a hardship with respect to the capability to obtain coverage under a qualified health plan.

The Obama administration is now apparently interpreting having to comply with the mandate itself — but only after one’s individual insurance policy was cancelled — as the requisite hardship. A prior regulation issued on July 1, 2013, by HHS had taken a narrower view of what the requisite hardship was:

(g) Hardship—(1) General. The Exchange must grant a hardship exemption to an applicant eligible for an exemption for at least the month before, a month or months during which, and the month after, if the Exchange determines that—
(i) He or she experienced financial or domestic circumstances, including an unexpected natural or human-caused event, such that he or she had a significant, unexpected increase an essential expenses that prevented him or her from obtaining coverage under a qualified health plan;
(ii) The expense of purchasing a qualified health plan would have caused him or her to experience serious deprivation of food, shelter, clothing or other necessities; or
(iii) He or she has experienced other circumstances that prevented him or her from obtaining coverage under a qualified health plan.

I look forward to hearing from others, and in particular from people with a commitment to the rule of law who previously have supported the ideas behind the ACA, but it is not clear to me that any of the pre-existing bases contained in this regulation for claiming a hardship exemption would apply to having a predicted cancellation in one’s individual insurance policy. Maybe at this late hour there are arguments and other documents I am not considering. Surely, however, the existence of the ACA itself can not be the human-caused event creating the hardship. Moreover, I have trouble seeing how the cancellation of a plan makes it more difficult for these individuals — as opposed to others in similar circumstances — from obtaining coverage under a qualified health plan.  I can well imagine cynics saying that the only real hardship involved here is having believed President Obama when he said that if you liked your health plan you could keep it and thus not having saved up for the higher prices that often exist in policies with “Essential Health Benefits.” Of course, if , as the Obama administration has claimed, many of these cancelled policies were junk that the policyholder should be glad to be rid of, it becomes yet more challenging to see much of a hardship at all in being offered real insurance coverage with all of its greater benefits.

In any event, it does not take a fertile imagination to foresee legal challenges to this limited exemption from those not fortunate enough to have had health insurance in the past but who are not being given a similar exemption from the individual mandate. I can easily see challenges based on failures of administrative procedure and equal protection.

The Death Spiral

I and others will need to think hard about the issue of magnitude. Obama administration officials are reported as having stated at a briefing that all but 500,000 of those with canceled policies will be enrolling in policies under the Exchange. This claim, however, is impossible to reconcile with existing enrollment statistics and assertions that millions of individuals have had their individual policies cancelled.  It is difficult to see how this decision would not exacerbate at least somewhat the risk of an adverse selection death spiral overtaking the Exchanges in many states.  The tax created by the mandate has always been justified as necessary to induce people of low or moderate risk to join those of higher risk in purchasing policies on the Exchange. By now exempting perhaps millions of people from this requirement — and, in particular, people who are most likely to have satisfied medical underwriting in the recent past — the Obama administration decision will likely diminish enrollment, at least somewhat, in the insurance Exchanges and, correlatively increase price pressures and insurer losses during 2014. To the extent that insurers systematically lose money as a result of this apparent decision, the federal government will be spending millions more — perhaps hundreds of millions more — in payments under the Risk Corridors program.


There’s one more implication we need to think about.  Although experts vary greatly on the magnitude, clearly a number of small businesses are going to lose their health insurance policies this coming year for failure to conform to the new ACA requirements.  This is the “second wave” that is sometimes spoken about. Are the significant number of employees and dependents who are thus subject to a risk of loss of coverage likewise going to receive an exemption from the individual mandate?

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Phantom costs: The lawless proposal to buy off the insurance industry via a “fix” to Risk Corridors

In my last blog post, I began to explain the proposed “fix” to the Risk Corridors program that the Obama administration seeks to achieve through modifications of its regulations. This is the provision of the Affordable Care Act under which the federal government reimburses large proportions of money lost by insurers over the next three years selling insurance to individuals in the Exchanges or to small employers.  Originally thought by many to be budget neutral, if, as appears increasingly possible, insurers on average lose significant money in the Exchanges, Risk Corridors could cost the federal government hundreds of millions of dollars or more.

I also suggested in that prior blog post that the “fix” raised serious concerns about the rule of law and separation of powers.  In this post, I want to follow up and explain further the accounting trickery and word play in which the administration is engaged and why it is not authorized by any law passed by Congress. Basically, the proposed changes in the regulations amount to an illegal pay off to the insurance industry so that they do not exit the Exchanges after having had the rug pulled out from under them by another decision not to enforce the law as written.

In sum, the Obama administration is proposing without any statutory authorization to let insurers increase the amount they get from the federal government under the Risk Corridors provision of the Affordable Care Act by treating as a “cost” money that the insurers have not spent and that can not be fairly said to be a cost of doing business.  The Obama administration makes this use of phantom costs appear more palatable by terming it “profit” and likening it to an opportunity cost of capital. But the increased “profits” the Obama administration now seek to permit insurers to subtract as a cost has completely detached itself from anything to do with real opportunity costs of running a business. The Obama administration would have been equally dishonest had they permitted insurers to place triple their rent on their Risk Corridor accounts and term the extra 200% a cost of business that entitled them to yet more money from the government. The proposed regulations should be seen as unlawful as an attempt by the Executive branch to change hard percentages used in the statute such as  80% into 95% simply because the Executive thought it better balanced the interests at stake.


The fundamental problem stems from the divergence between what the President repeatedly told Americans during his presidency — if you like your health care plan, you can keep it — and what the Affordable Care Act (a/k/a Obamacare) really said, particularly as it ended up being implemented by the President’s own executive agencies (here and here). The insurance industry acted as if the rule of law mattered, not the campaign rhetoric or people’s perceptions of it, and set its prices in the healthcare Exchanges in accord with the law and the administration’s own forecasts of its effects on competing policies otherwise available to healthy people.  So, when the President announced on November 14, 2013, that his administration would conform the law to his rhetoric and public expectations (by declining under certain circumstances to execute sections 2701-2709 of the Public Health Service Act as modified by the Affordable Care Act), the insurance industry had a fit. It appropriately warned the President that, by reviving competitive sources of health insurance for some of their healthiest potential insureds, he was destabilizing the insurance markets. And, since the keystone of the President’s signature piece of legislation, the Affordable Care Act, depends on happy private, profitable insurers, this was a warning the President and his executive agencies had to heed.  Instead of backing down on the November 14, 2013 announcement, the President doubled down on regulatory change. This past week the Department of Health and Human Services proposed in the Federal Register how current Risk Corridor regulations might be amended to give insurers relief.

A Quick Look at the Statute

For ready reference, here’s an excerpt of the key part of the Risk Corridors statute in question.  You can try to read it now or refer to it periodically as you progress through the remainder of this blog entry.

(1) PAYMENTS OUT.—The Secretary shall provide under the
program established under subsection (a) that if—
(A) a participating plan’s allowable costs for any plan
year are more than 103 percent but not more than 108
percent of the target amount, the Secretary shall pay to
the plan an amount equal to 50 percent of the target
amount in excess of 103 percent of the target amount;
(B) a participating plan’s allowable costs for any plan
year are more than 108 percent of the target amount,
the Secretary shall pay to the plan an amount equal to
the sum of 2.5 percent of the target amount plus 80 percent
of allowable costs in excess of 108 percent of the target

The Federal Register Proposal

The fundamental idea in the new Risk Corridors proposal is to put the insurers back in the same position they would have been in had the non-enforcement announcement (“the transitional policy”) not been made.One can see this point made repeatedly in the Federal Register proposal:

Therefore, for the 2014 benefit year, we are considering whether we should make an adjustment to the risk corridors formula that would help to further mitigate any unexpected losses for issuers of plans subject to risk corridors that are attributable to the effects of the transition policy. (78 FR 72349)

We are considering calculating the State-specific percentage adjustment to the risk corridors profit margin floor and allowable administrative costs ceiling in a manner that would help to offset the effects of the transitional policy upon the model plan’s claims costs. (78 FR 72350)

Although the adjustment that we are considering would affect each issuer differently, depending on its particular claims experience and administrative cost rate, we believe that, on average, the adjustment would suitably offset the losses that a standard issuer might experience as a result of the transitional policy. (78 FR 72350)

Two clearly illegal ways to “fix” the problem

The problem the administering agency (Health and Human Services) faces, however, is how. How does HHS “suitably offset the losses that a standard issuer might experience as a result of the transitional policy?” One simple way might have been to adjust the reimbursement percentages contained in the statute, changing them from 50% and 80% for different levels of losses to higher levels. The problem is that the statute (42 U.S.C. § 18062) specifically sets forth the 50% and 80% reimbursement percentages and it would challenge even the most fertile imaginations to contend that it was within the province of an administrative agency to interpret those, as, say, 70% and 95%. And in the current gridlock — and with proposals to repeal Risk Corridors circulating —  getting such a proposal through Congress would seem impossible.

Alternatively, the administration might have made the insurers whole by adding state-by-state constant terms to the formula for reimbursement that roughly approximated the amount a typical insurer might lose in that state. Again, though, that would just constitute a statutorily unauthorized give away of federal taxpayer to the insurance industry.  Congress did not authorize payments so that insurers could maintain the same profits they would have earned in an alternative regulatory environment; instead Congress attempted to compress the profits and losses of insurers based on the regulatory environment that they in fact were in.

The “fix” suggested by the Federal Register proposal: what’s the difference?

What I now want to persuade you of, however, is that, after one strips away the confusing accounting, the Federal Register proposal, in its essence, amount to the same thing as these clearly unauthorized alternatives.  They are, in effect, a coverup for a giveaway of government money. The are very much the assumption of legislative powers by the executive branch of government.

The conceptual problem

One can almost see the problem without doing the math. The very objective set forth repeatedly in the Federal Register proposal — of putting the insurer back into some alternative financial condition, almost as if the government had taken their property or committed a tort by changing the rules — is nowhere to be found in the Risk Corridors statute. Section 1342 speaks of real premiums earned and real costs incurred and looks at their ratio in order to determine federal aid to insurers writing in the Exchanges. That perspective is echoed in the initial regulations published in the Federal Register months before the “transitional policy” brouhaha broke out. The definitions of critical terms adopted in those regulations speak of costs “incurred” or the “sum of incurred claims” or “premiums earned.” (See note below on definitions). Moreover, the definitions are nationwide. There is no sense that the values in the regulations (such as limits on the amount of administrative costs that can be claimed by an insurer) need to be adjusted on a state-by-state basis. And that refusal to adjust the regulations based on different economics in different states exists under the current regulations even if insurers in different jurisdictions have different financial experiences under the Affordable Care Act or face different state regulatory environments.

So, with those darned percentages statutorily nailed down, how does one achieve the objective in the Federal Register proposal of giving insurers their anticipated profits back? The answer is that the Federal Register proposal attempts to add a phantom cost that will vary state-by-state in precisely the amount needed to do the job.  Of course, writing “state-specific phantom cost” into the regulations would alert everyone that the plan was just to shovel money to insurers to keep them happy regardless of what was in the law. So, instead, the idea was to seize upon a word already in the regulations — “profit” — and alter its definition beyond recognition. Expanded “profit” could then do the same job as “state specific phantom cost.”

The math

Here are the specifics. The statute makes the amount the insurer receives in Risk Corridor payments (or pays) depend on a ratio.  A higher ratio often results in more payments and never results in smaller payments from HHS. The numerator of the ratio is something called “allowed costs,” so the higher the allowed costs, the better HHS treats the insurer under Risk Corridors.  The denominator of the ratio is something called “the target amount.” Because higher ratios are good for the insurer, the smaller the “target amount” the better HHS treats the insures under Risk Corridors. (Remember, dividing by a smaller number yields a higher result.) And “target amount” is defined as total premiums less administrative costs.  So, the more an insurer can stuff into administrative costs, the smaller the denominator, the higher the ratio, and the better the insurer fares under Risk Corridors. Indeed, much of the regulatory effort has been appropriately devoted to deterring insurers from exploiting the formula by stuffing overhead they incur servicing non-ACA policies into “administrative costs” that increase their Risk Corridor payments. (Good idea!)

Back in March of 2013, in trying to figure out how to operationalize the ideas contained in the Risk Corridors statute, HHS decided to recognize that the insurer risks its capital in order to operate an insurance company. HHS recognized that it is therefore appropriate to treat some of that opportunity cost as a true cost. (I have no particular problem with the concept). Perhaps unfortunately, but as a convenient shorthand, HHS called this opportunity cost “profit.” Be clear, however, the term “profit” as used in the regulations had little to do with how much money the insurer actually made; it was just an easy term to reflect the fact that when insurers use money to establish offices and buy computers they forgo interest and dividends  that they might otherwise have earned.

But how much of this opportunity cost called “profit” should an insurer be entitled to use to reduce its Risk Corridor denominator?  After receiving comments that were apparently almost uniform on the subject — the one dissent advocated a lower number — HHS decided to use 3% of after-tax premiums. It called this number, “the profit margin floor.”

Several things are significant about the decision to use 3% of premiums.  First, the profit margin floor is 3%, not 6% or 9% or some higher number yet. No one apparently thought the number should be higher. Second, the number is uniform across states. This is entirely sensible because, to the extent that an allowance for capital costs is appropriate at all, capital costs of an insurer are incurred in a national market. Insurers in California do not have opportunity costs of capital that differ very much from insurers in Texas. And, third, the number is a coefficient of net premiums rather than assets probably because use of premiums provides a sensible surrogate for the amount of capital risked by running an Exchange insurance operation instead of running one’s entire insurance business.

What the new Federal Register proposal does is to increase the profit margin floor and to do it in a state-specific way. By increasing the profit margin floor, one can decrease the target ratio denominator and increase the Risk Corridors ratio, which in turn can increase the payment made by HHS to the insurer.  Mathematically, increasing the profit margin floor is little different than permitting the insurer to count triple-rent on its offices rather than real rent or to just pad its electric bills by, say, a million dollars. All are additions of non-existent “phantom costs” that act to decrease a denominator and, derivatively, increase a ratio upon which reimbursement depends.

Moreover, the amount by which the profit margin floor will need to be increased is not a trivial amount.  As shown in the Risk Corridors Calculator, “profit margins” may need to be tripled or more to bring an insurer back to the same position they were in originally.  I would not be surprised to see the profit margin floor in some states in which adverse selection proves particularly problematic to be upwards of 12%.  I am not aware of many insurers making 12% of their premiums in profits, which is precisely why, before they saw the need to repair the damage done by the President’s change of mind, HHS was using 3% as the appropriate figure with only lower numbers being suggested.

Why the proposed fix is unlawful

Any thought that the proposed increase in profit margin floor might have something to do with economic reality, with changes in the cost of capital, is belied by the way HHS explains the change and by the state-by-state approach it now proposes to take.  The HHS explanation is that, because different states are implementing “the transitional plan” differently, the need to adjust Risk Corridors to bring insurers back to their former position differs as well.

We believe that the State-wide effect on this risk pool will increase with the increase in the percentage enrollment in transitional plans in the State, and so we are considering having the State-specific percentage adjustment to the risk corridors formula also vary with the percentage enrollment in these transitional plans in the State. (78 FR 72350)

Of course, in some sense, this is true. But this simply highlights the point that the adjustments to profit margin floor have nothing to do with real costs, the concept the statute cares about.

Not enough? Take a look at the explanation for why HHS did not adjust profit margin floors it on an insurer-by-insurer basis.  It has nothing to do with different costs of capital that different insurers might face, but again, the state-by-state approach is used because it is a simpler way of approximating and offsetting the loss insurers would face in each state as a result of differential effects of the transition policy.

Although the adjustment that we are considering would affect each issuer differently, depending on its particular claims experience and administrative cost rate, we believe that, on average, the adjustment would suitably offset the losses that a standard issuer might experience as a result of the transitional policy. (78 FR 72350)

The administrative law and separation of powers issue is whether the agency empowered with administering Risk Corridors can count as a cost not an expense the insurers actually incur as a result of being in an Exchange but the “regulatory taking” that will occur differentially in each state as a result of President Obama changing his mind. I suppose that, if there is someone with standing to challenge this give away of government money, it will ultimately be for the courts to decide this question.  (By the way, if anyone can suggest someone who might have standing, email me). And I suppose someone can argue that it actually fulfills some general intent of the ACA to keep insurers involved in the Exchanges and not have them flee when other regulations change.

Executive administrative agencies such as the Department of Health and Human Services have the authority under some circumstances to interpret statutes; courts will often then defer to their interpretations. But this fix is not a stretch; if it actually does what its drafters intend, it will be a redraft of the Affordable Care Act itself. I see no difference except opacity between what the Obama administration has done by seizing on a code word “profit” and expanding its definition beyond recognition and saying that when the statute says 80% of losses, surely that could be construed as 95%. Both are unlawful.

Two final notes

The allowable administrative cost cap percentage and the medical loss ratio

Careful readers of the Federal Register will note that there are two other matters it discusses.

The Federal Register proposal also discusses the need to adjust the “allowable administrative costs ceiling (from 20 percent of after-tax profits) in an amount sufficient to offset the effects of the transitional policy upon the claims costs of a model plan.” This provision is needed because otherwise, even if the profit margin floor were increased, insurers would bump up against the existing administrative cost ceiling of 20%.  So, to make sure that the phantom cost “profit margin floor” increase really works, the proposed regulations propose removing that constraint. And to make sure that evil insurers do not take advantage of the relaxed constraint to allocate more of their costs to Exchange plans, the regulations make clear that the insurer would had to have met the 20% standard before consideration of increased “profit” was made.

The Federal Register proposal also discusses a need to adjust the Medical Loss Ratio (MLR) percentages. This is the provision of the ACA that says that if insurers spend too much of their money on non-claims matters, they have to pay a rebate to their insureds.  The problem becomes that if insurers are permitted to treat more than 20% of their premiums as administrative costs for purposes of Risk Corridors they might want to treat more than 20% of their premiums as legitimate administrative costs for purposes of MLR rebates. It’s a little fuzzy, but it sounds as if HHS wants to tweak the MLR regulations so that the MLR provisions do not take away from insurers what they will be winning if the remainder of the Federal Register proposal goes into effect.

The typo in the statute

There’s a complication we have to work through. This whole area is complicated by the fact that there is a typographic error in section 1342.  Here again is the relevant part.

(1) PAYMENTS OUT.—The Secretary shall provide under the
program established under subsection (a) that if—
(A) a participating plan’s allowable costs for any plan
year are more than 103 percent but not more than 108
percent of the target amount, the Secretary shall pay to
the plan an amount equal to 50 percent of the target
amount in excess of 103 percent of the target amount;
(B) a participating plan’s allowable costs for any plan
year are more than 108 percent of the target amount,
the Secretary shall pay to the plan an amount equal to
the sum of 2.5 percent of the target amount plus 80 percent
of allowable costs in excess of 108 percent of the target

See in subparagraph (1)(A) where it says “the Secretary shall pay to the plan an amount equal to 50 percent of the target amount in excess of 103 percent of the target amount.” But if you think about it, this could never happen.  Taken literally, there could never be a payment under this provision. So long as the target amount is a positive number, which it always will be since premiums are positive, the target amount can NEVER be in excess of 103% of the target amount.  5 can never be in excess of 103% of 5 (5.15).  10 can never be in excess of 103% of 10 (10.30). Can’t happen.

Looking at the next subparagraph, (1)(B), resolves the mystery of subparagraph (1)(A). It speaks about paying “ 80 percent of allowable costs in excess of 108 percent of the target amount.” (emphasis mine). And this makes complete sense.  The more the insurer loses, the more the government reimburses the insurer.  That’s the whole point of the provision.  I therefore believe that  subparagraph (1)(A) should be interpreted to mean “the Secretary shall pay to the plan an amount equal to 50 percent of  allowable costs in excess of 103 percent of the target amount.”

So, I assume that courts will interpret the statute to read as Congress must have intended it and not as some sort of cute joke resting on a mathematical impossibility.  See United States v. Ron Pair Enterprises, 489 U.S. 235 (1989) (“The plain meaning of legislation should be conclusive, except in the ‘rare cases [in which] the literal application of a statute will produce a result demonstrably at odds with the intentions of its drafters.’ Griffin v. Oceanic Contractors, Inc., 458 U. S. 564, 571 (1982). In such cases, the intention of the drafters, rather than the strict language, controls. Ibid.” )

Note on Definitions

As set forth in the regulations, “Allowable costs mean, with respect to a QHP [Qualified Health Plan], an amount equal to the sum of incurred claims of the QHP issuer for the QHP.” The regulation sensibly uses the word “incurred.” This is so because costs are things the insurer has to pay out or has to accrue liabilities for, not things that, under some other set of circumstances they might otherwise have had to pay out.  If that were not the case, the administration could redefine costs to include anything at all, such as the costs the insurer would have faced if every one of their insureds had cancer.

The regulations tweak the definition of “administrative costs” by adding an extra adjective. They introduce the concept of “allowable administrative costs.”  The insurer is not permitted to reduce its “target amount” by claiming some enormous sum (such as private jets for the CEO) as non-claims costs, subtracting them from premiums and reporting low net premiums (target amount) in order to get paid more by the government under the Risk Corridors program. Instead, the regulations define “allowable administrative costs” as non-claims costs that are not more than 20% of premiums. That makes some sense because section 10101 of the ACA (42 U.S.C. § 300gg-18) often requires insurers whose administrative costs are more than 20% of premiums to pay a rebate to their insureds.

Premiums are also reasonably defined under the existing regulations. They sensibly say, “Premiums earned mean, with respect to a QHP, all monies paid by or for enrollees with respect to that plan as a condition of receiving coverage.” Thus, under the statute and existing regulations, premiums must refer to real premiums, not hypothetical premiums. Premiums are moneys the insurer receives, not money the insurer might have received under some other set of circumstances. Again, this just has to be the case; if it were not true, the administration could funnel virtually an infinite amount of money to the insurance industry by saying that premiums are funds the insurer would have received if no one signed up for their plan. 

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The Risk Corridor Calculator: How the government plans to use fictitious profits to shovel more money to insurers

Snapshot of the Risk Corridor Calculator
Snapshot of the Risk Corridor Calculator

This is a different kind of blog entry.  There isn’t going to be too much text here. Instead, I want to direct you to a spreadsheet I created (The Risk Corridors Calculator) available on Google Docs and the first (click here to watch it on YouTube) of two videos I’ll be making that explain

(1) how Risk Corridors work under the regulations originally proposed by the Department of Health and Human Services (HHS)

(2) how the insurance industry could lose money notwithstanding Risk Corridors as a result of President Obama changing his mind and conditionally permitting certain insurers for one year to “uncancel” certain  policies that the Affordable Care Act would otherwise have have prohibited starting in 2014; and

(3) how the proposed revisions to the Risk Corridor regulations will shovel money to many insurers and could put them back in the same position they would have been had President Obama not changed his mind.

[Note from 8:32 a.m. 12/6/2014: I discovered a small error in the Risk Corridors Calculator. It has been fixed.  It does not affect anything essential in this blog. Unfortunately, I will need to conform the video to the Calculator, which is likely not to happen until later today. So, if you watch the video today, it is conceptually fine, but just be aware that one of the formulas was off.]

In essence, however, the proposed HHS regulations impute fictitious “profits” to insurers that they then get to subtract from their net premiums.  As a result, it will look to the Risk Corridors program as if the insurer is losing more money in an Exchange plan and therefore entitled to greater government assistance.  (The government has now acknowledged that, although the Congressional Budget Office scored it as costing nothing, Risk Corridors need not be budget neutral.) Another way of thinking about the proposal is that it creates phantom costs that affect the apparent (though not the real) profitability of the insurer and then shovels money to insurers based in part on those phantom costs. It is little different than the government insisting that the insurer lost money due to claims that it actually did not pay and is therefore entitled — even under a formula that is formally unchanged — to greater payments from the government.  Viewed yet another way, it is almost as if the proposed regulations treat what President Obama did as a “tort,” and remedy the wrong by licensing the aggrieved insurers to use contorted accounting to place themselves back in the same position they would have been in had the President not, in effect, interfered with the prospective economic advantage they thought they had in the Exchanges.

Neither this blog entry nor the video will address whether the proposed regulations are permissible as a matter of administrative law or separation of powers. Nor will I explore today whether the regulatory changes can be seen as a necessarily evil. Exposing what is actually going on here, however, must create some serious concerns for all concerned about the rule of law. When section 1342 of the Affordable Care Act (42 U.S.C. § 18062) speaks of “allowable costs,” one would initially think it referred to costs actually incurred by the insurer as a result of running its program. Those costs might be paying claims, paying the electric bill, marketing costs and, perhaps, some reasonable allowance for profit — such as the 3% of after tax premiums actually placed in the original regulations.

But it is going to take some work to show that, by “allowable costs,” the statute meant costs that the insurer did not actually incur in running its program. The burden will be even higher due to the fact that the proposed regulations apparently contemplate varying this heightened profit allowance from state to state. This will be done not in response to different rates of return on capital in the different states, but only to take account of differential losses to insurers caused by different state responses to President Obama’s about-face on whether certain plans that violate ACA requirements could continue to be sold outside of the Exchanges.

In short, the increase in “profit” sure looks like a book-keeping entry whose sole purpose has nothing to do with anything in the statute but is instead designed to restore the insurer to the position it would have been in had federal policy not changed. It is as if the insurers are being given some sort of entitlement to the profits they would otherwise have made and the administration is looking for any term in the statute not glued down (such as an 80% reimbursement rate on certain losses) in order to accomplish this goal.

Fleshing out  more fully these matters of statutory interpretation, separation of powers, and administrative law will be left for later, however, along with a fuller explanation of what is going on inside the Risk Corridor Calculator that I created. For now, play with the spreadsheet and enjoy the video.


Society of Actuaries, Health Watch: Risk Corridors under the Affordable Care Act — A Bridge over Troubled Waters, but the Devil’s in the Details

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A quick sketch of issues created by Obamafix


Note: this entry will likely be updated today as new information comes in.

President Obama is stating right now that the Executive branch of the federal government will fix the problems created by insurer cancellation of many individual health policies by forcing insurers to renew cancelled policies.  It may be that state insurance commissioners will be able to veto this imposition within their own states.

A number of legal and economic issues are created by this proposal.  I sketch them here.

1. Where does President Obama get the authority to issue such a regulation?  The President can not rule by decree and it will be challenging to figure out what statute authorizes him to undo parts of the Affordable Care Act that would have prohibited insurers from selling such policies.  Perhaps the President will argue that all he is doing is directing the Secretary of HHS and other executive officials not to prosecute or otherwise punish insurers for selling policies without Essential Health Benefits but only with respect to policies they had just recently cancelled? Or possibly he might expand the definition of what it means to be “grandfathered.” In any event, there is a separation of powers issue here worth thinking about.

But, if I am hearing the President correctly and reading news accounts properly, I am wondering who will have “standing” to challenge the ruling since no one appears to be forced to do anything.  If I’m reading things incorrectly and insurers are indeed going to be forced to uncancel, then, unlike earlier expansionist views of executive authority such as delay of the employer mandate, there will definitely be institutions with “standing” — some insurer that does not want to renew — to challenge the ruling.

As one might expect, law professors are opining on the legality of the President acting here without congressional authority.  Professor Eugene Kontorovich from Northwestern University Law School has published a quick piece on The Volokh Conspiracy, a leading conservative-libertarian blog, arguing that the President’s fix violates separation of powers.  He also cites to the letter actually sent by CMS to State Insurance Commissioners explaining the President’s ruling.

2. From what I am now hearing, it appears that insurers will not be forced to reissue these policies.  Nor will state insurance commissioners be forced to authorize sale of these policies.  That should eliminate federalism issues or possibly due process issues.  Otherwise there would have been a question as to whether forced insurance by the federal government — whether done by a legislature or through executive action — violates any independent protections of the Constitution?  Assuming this is regulation of interstate commerce, nonetheless neither the executive nor the legislature can take property without just compensation and, on occasion,  this provision has been interpreted to encompass regulations that effectively take property.

3. Assuming insurers accept the President’s invitation, doesn’t this create more problems for the Exchange?  The hundreds of thousands or millions of people who are potentially being helped here are people who have recently been medically underwritten and are most likely healthy.  If these people have the chance of being forced into a pool in which there is no medical underwriting and one in which there is, many will opt — even if there is no subsidy — into the underwritten pool, particularly if the Exchange policies offers a feature/price mix that they do not want. But the withdrawal of these people from the Exchange pools makes it ever more likely that an adverse selection death spiral could develop in the Exchange.  The horse journalists and others should be beating now is not about breaches of promise — that’s been thoroughly discussed — but about how insurers who have agreed to write policies in the Exchange on one set of assumptions about the pool are going to react when those assumptions change.

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