The House Passes Legislation Aimed at Preserving the Affordable Care Act

Notable among the bills passed by the U.S. House of Representatives in recent months are two bills aimed at shoring up the Affordable Care Act (ACA). Below, we explore the content of both bills—though it is worth noting that neither bill has been, nor is expected to be, taken up by the Senate.

H.R. 987

Introduced by U.S. Representative Lisa Blunt Rochester (D-DE), H.R. 987, the Strengthening Health Care and Lowering Prescription Drug Costs Act has two primary aims: first, to reverse recent administrative actions that undermine the ACA (and health insurance Marketplaces in particular); and second, to lower, and increase transparency into, prescription drug costs.[1] Included among the bill’s provisions aimed at preserving the ACA and supporting health insurance Marketplaces are measures to:

  • Provide a new opportunity for states to receive Federal Exchange Planning Grants, which support the exploration of newly establishing a State-based Marketplace (SBM), through 2025.
  • Restore Navigator funding and standards:
    • $100 million per year would, once again, be made available to Federally-facilitated Marketplace (FFM) states and $25 million per year would be made available for SBM states.
    • Key standards that have been rescinded would be reinstated, including requirements regarding the number and types of Navigators, the breadth of information that must be provided by Navigators, and maintaining  a physical presence in the state.
    • The U.S. Department of Health and Human Services (HHS) would be prohibited from considering the ability of Navigator applicants to reach individuals unaware of non-ACA compliant coverage options in selecting grantees.
  • Restore funding for FFM outreach and enrollment activities.
    • These activities would once again be funded at $100 million per year, and funding could not be used to promote non-ACA compliant plans (such as Association Health Plans [AHPs] and Short-Term Limited Duration Insurance [STLDI]).
  • Prohibit implementation and enforcement of the recent Final Rule on Short Term, Limited Duration Insurance (STLDI) or substantially similar rules, which expand access to STLDI and, thereby, put the individual Marketplaces at risk of increased adverse selection.[2]
  • Prohibit the termination of automatic re-enrollment in the Marketplace and express the opinion that HHS should not limit the practice of “Silver-loading,” or concentrating rate increases caused by the lack of federal payments for cost-sharing reductions (CSRs) in Silver level plans for which CSRs are available. In this year’s Notice of Benefit and Payment Parameters (NBPP), HHS expressed an intent to consider future rulemaking on both of these topics.

H.R. 987 also includes provisions aimed at increasing transparency regarding federal activities relative to Marketplaces, including required reporting on:

  • The use of Marketplace user fees;
  • Marketplace enrollment targets and biweekly detailed enrollment updates; and
  • Annual outreach and enrollment efforts.

Finally, the Government Accountability Office (GAO) would be required to release a series of reports on:

  • Whether website maintenance was done in a manner to minimize the impact on enrollment;
  • A cost-benefit analysis of state-regulated public option plans; and
  • A study of the impact of current funding cuts to the Navigator program and federal outreach and enrollment efforts.

H.R. 986

Around the same time as H.R. 987 passed the House, the chamber also passed H.R. 986, the Protecting Americans with Preexisting Conditions Act of 2019. This bill, introduced by U.S. Representative Ann Kuster (D-NH), would prevent federal officials from implementing the recent guidance on Section 1332 Waivers that makes easier for states to receive waivers of certain provisions of the ACA. Under the bill, HHS would also be prohibited from adopting substantially similar guidance or rules going forward.

Earlier this month, HHS released resources designed to help states pursue Section 1332 Waivers under the new guidance, including an application checklist,  and model concepts and accompanying templates. The legislation expressly does not impact the ability for states to be granted waivers to support reinsurance programs, which is the subject of the majority of Section 1332 Waivers that have been sought and granted to date. It would also not prevent the approval of waivers that meet the requirements of prior guidance. Under H.R. 986, the GAO would also be required to report on the number of individuals expected to lose coverage under the new guidance.

H.R. 1884

H.R. 986 and H.R. 987 together comprise most of the content that was also included in H.R. 1884, the Protecting Pre-Existing Conditions and Making Health Care More Affordable Act of 2019, filed by U.S. Representative Frank Pallone, Jr. in March. In addition to many of the provisions included in the other two bills, H.R. 1884 would also:

  • Increase eligibility for Advance Payment Premium Tax Credits (ATPCs) above the current cap of 400% of the Federal Poverty Level (FPL), and increase the size of APTCs for all eligible recipients.
    • H.R. 1884 would also eliminate what has become known as the “Family Glitch” for APTC eligibility. Individuals are ineligible for APTCs if they have access to “affordable” Employer-Sponsored Insurance (ESI), which is currently based on whether an employee’s cost for individual-only coverage meets affordability standards. It does not take into consideration whether the more expensive family coverage is affordable. As a result, if a worker’s individual coverage cost is deemed affordable, that worker’s spouse and/or children are excluded from APTC eligibility—even if the cost of full-family coverage is unaffordable. H.R. 1884 would base the determination of ESI affordability for the purpose of APTC eligibility on the cost of family coverage rather than individual-only employee coverage.
  • Provide $10 billion of federal funding to states for use in: (1) establishing a state-based reinsurance program; or (2) providing premium or cost-sharing subsidies.
    • HHS would be required to establish a federal default reinsurance program to be effective in states that do not establish a state-based program.
  • Rescind the rule expanding access to AHPs, which put the individual and small group markets at risk of greater adverse selection.
  • Prohibit the changes to Essential Health Benefits under the NBPP that allow for across-category substitutions; require access to “a wide variety” of prescription drugs and an exceptions process for non-formulary drugs; and require that habilitative services be covered at parity with rehabilitative services.
  • Require that HHS resume modeling optional standardized plans for FFMs based on the most-commonly purchased plan in the FFM the prior two years.
  • Provide grants for states to: (1) establish Consumer Assistance Programs, similar to the 2010 grant program, or a health insurance ombudsman program; and (2) pursue studies and/or models to increase enrollment in the individual and small group markets, including via a state-based individual mandate.

With most of the provisions of H.R. 1884 moving forward via other vehicles, this bill has not yet moved forward in the House.

[1] The prescription drug provisions in the bill are outlined in our article on pending cost control legislation.

[2] This provision is also included in H.R. 1010, which is pending in the House.

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