ACA Update: Five Things to Know About Where the Law Stands As Open Enrollment Begins

Open enrollment for the Affordable Care Act’s health insurance Marketplaces lasts from November 1 to December 15 in most states. As the seventh ACA open enrollment commences and the law’s 10th anniversary approaches, here are five things to know about it now:

1. The Texas Case: A decision from the Fifth Circuit Court of Appeals in Texas v. U.S., a case challenging the constitutionality of the ACA, could come at any time, and based on the oral arguments many observers expect the three-judge panel to strike down the entire law. The Trump Administration has committed to enforcing the law while it’s being appealed, meaning nothing should change after the Fifth Circuit’s decision, but a ruling against the ACA during the open enrollment period has the potential to drive down signups by stirring uncertainty about the law’s status. Invalidating the entire law would mean as many as 20 million people could lose coverage through the ACA’s Marketplaces and the Medicaid expansion.
2. Resilience of the ACA Marketplaces: The Marketplaces created under the ACA have weathered the uncertainty of two Supreme Court decisions, two presidential elections, three failed repeals, and numerous potentially destabilizing regulatory changes. According to the Centers for Medicare and Medicaid Services (CMS), premiums for the most common type of plan will be down 4% in 2020, and more insurers will be competing in the Marketplaces. Both blue and red states have been taking steps to keep their markets stable: 12 states now have federally approved reinsurance programs that have helped keep premiums in check and insurance companies participating.
3. Blue State Resistance: Democratic-leaning states like Washington and Colorado, which are working on state-sponsored “public option” plans; and Maryland, which is setting up an “Easy Enrollment” program to connect residents to coverage through a check box on the state tax return, are countering the Trump Administration’s health policy agenda by building on the ACA’s existing structure. California will be the first state to commit its own money to give people who make too much to qualify for federal subsidies some financial help, offering state-based assistance to people making 400%–600% of the poverty level.
4. Expansion of Non-ACA-Compliant Plans: For people who make too much for ACA subsidies, the Administration is promoting alternatives to ACA coverage like short-term plans, which are less expensive because they can cover fewer benefits and screen out people with health conditions. California has completely banned short-term plans, and a few other states have driven them out with heavy regulation, but in most states people have access to them for periods of between 3 months and 3 years. Health care sharing ministries (HCSMs), faith-based arrangements that pool members’ funds to pay for certain health care services, are an increasingly popular alternative to ACA plans. They are mostly unregulated, but recently several states have shut down “sham” HCSMs that were marketed as comprehensive insurance but failed to pay for common medical procedures.
5. States Weighing Waivers for Individual Market Overhauls: Despite coaching from CMS—in the form of templates, checklists, and “waiver concepts”—states have been slow to embrace waivers to redesign their individual health insurance markets. Section 1332 State Innovation Waivers were created by the ACA to allow states to experiment with different individual market models. Twelve states have used this authority to set up reinsurance programs, but the federal government has been trying hard to get them to pursue major changes, like allowing ACA subsidies to be used for short-term or other non-ACA-compliant plans. On October 31, Georgia became the first state to propose such a waiver. States have so far declined to make major changes that would limit their essential health benefits (EHB) packages, despite encouragement from the federal government to revise their EHBs.  

Check back soon for five more things to know about the ACA now, including policy changes affecting immigrant health care, nondiscrimination under the health law, Medicaid redesign, and a new AOTA resource for EHB advocacy.