Broker blog from Delta Dental

Category: Individual dental coverage

The Supreme Court nomination and the ACA: What’s at stake for dental insurance

In the case of California v. Texas, scheduled to be heard before the United States Supreme Court on November 10, parties challenging the Affordable Care Act (ACA) seek to overturn the law as unconstitutional. What might this case mean for the future of the ACA and insurance more widely?

The usual questions surrounding the outcome of this case have been complicated by the appointment of Amy Coney Barrett, a new justice to the Supreme Court, nominated by President Donald Trump.

What’s at stake for the ACA?

The elimination of the ACA could have significant consequences, including:

  • Decreases or complete loss of state and federal Exchange enrollment, adult Medicaid enrollment and commercial enrollment of dependents up to age 26
  • A reduction or elimination of individual health insurance subsidies, which could erode Exchange enrollment
  • A reduction or elimination of dental benefits for adults in Medicaid

So what’s California v. Texas about, anyway?

The state of Texas, along with a group of other states and individual plaintiffs, is arguing that the ACA is unconstitutional. Specifically, they say that the 2017 changes to tax law, eliminating the penalty for failure to purchase health coverage, essentially eliminated the individual mandate, upon which the entire law depended.

Originally, the individual mandate required most people to have health insurance coverage. It penalized those who failed to comply by requiring them to pay a financial penalty to the IRS. The 2017 Tax Cuts and Jobs Act eliminated the financial penalty, but left the mandate in place.

The Texas-led plaintiffs argue that because the mandate no longer produces revenue for the federal government, it’s unconstitutional. Further, they say that the mandate can’t be severed from the rest of the ACA, so if the mandate is unconstitutional, the entire ACA is unconstitutional.

In December of 2018, a U.S. District Court judge in Texas agreed. In 2019, the case went to the U.S. Court of Appeals for the Fifth Circuit. That court agreed with the District Court’s decision that the mandate was unconstitutional, but didn’t rule on whether the mandate was inseverable.

On the other side, California, together with a group of 18 other states, is defending the ACA.

In an unusual move, the federal government is siding with Texas, though offering arguments to allow some elements of the ACA to continue.

The Supreme Court has agreed to hear the case, scheduled for November 10. It will decide whether the Texas case has merit, whether the mandate is unconstitutional and, if so, whether this invalidates the entire ACA, or whether to let lower courts rule on severability.

Why a new Supreme Court justice matters

Justice Amy Coney Barrett has been confirmed and will fill a vacant seat on the Supreme Court.  

Barrett was formerly a circuit judge on the U.S. Court of Appeals for the Seventh Circuit. She’s considered a political conservative and constitutional originalist, which means she believes the U.S. Constitution should be interpreted as it was understood at the time it was written. As a judge, she has also ruled against the ACA in the past. She replaces Justice Ruth Bader Ginsburg, known for being one of the Supreme Court’s most liberal justices.

What specifically Barrett’s confirmation means in terms of a ruling is unclear, said Jeff Album, Vice President of Public & Government Affairs for Delta Dental.

“We’re not sure how the conservative judges are going to hear this particular case,” Album said. “Conservatives are thought to be originalists or strict interpretationists, and if they were truly to follow an originalist philosophy, striking the entirety of the ACA is not consistent with that.”

That’s because, Album said, if Congress had intended to overturn the ACA, the 2017 tax cut bill would have explicitly called for such an overturn, and the merits of that debated openly in hearings. That this didn’t happen speaks to the intent of Congress, which is an important consideration for a Supreme Court reaching a decision based on originalist thinking.

“Strict interpretationists are loath to reverse an act of Congress,” Album said. “They don’t want to counter Congressional intent, and they certainly don’t want to legislate from the bench. And if you listen to remarks that Amy Barrett has been making in the hearings, she’s gone out of her way to say she doesn’t believe that it’s a judges’ job to do anything other than enforce the Constitution and enforce the law.”

Still, that’s not a guarantee that Barrett will rule to preserve the ACA, Album said.

“We know that Amy Barrett is not fond of the ACA,” Album said. “She’s ruled against it many times, so she already has that track record.”

So what if the ACA is struck down? Then what?

If the Supreme Court rules to strike the entire bill, the impacts are “going to be profound,” Album said.

In that scenario, blue states such as California, New York, Massachusetts and Maryland would pass state laws to attempt to preserve some elements of the ACA, Album said, but they might lack federal support for the subsidies people depend on to afford those programs. Few red states, meanwhile, would be prepared to run their own Exchanges without the federally facilitated marketplace. This could lead to enrollment in Exchanges dropping substantially, Album said.

And this could lead to substantial enrollment declines for insurance companies with sizeable managed Medicaid and Exchange business.

About 1.9 million adults who have purchased optional, non-subsidized dental benefits in the Exchanges could lose their coverage. Young adults between the ages of 19 and 26 who were added to commercial employer coverage as a result of the ACA will lose that coverage if the ACA is completely struck.

Congress could decide to provide relief, but its ability to do so is dependent on the results of the November election. We’ll take a closer look at what the election results could mean for these issues in an upcoming article.

However…

Regardless of what happens, Album said, don’t expect anything to happen any time soon. Following the California v. Texas hearing in November, the decision won’t be announced until April or May, and possibly as late as June.

And if the Court agrees that the mandate is severable and sends that question back down to the lower courts, it could take years before that outcome and the additional legal challenges it will face.

A final twist is that while the current administration is arguing that the mandate should be struck down, it’s also urging that lower courts rule which provisions should and shouldn’t be invalidated.

“Even the Trump administration has suggested, and perhaps will argue in the Supreme Court, that some things should be left alone,” Album said. “We just don’t know which things they would cherry-pick in terms of what should be inseverable and what shouldn’t.”

Note: This post was updated to note Barrett’s confirmation to the Supreme Court on October 26.

Policy pops: How does dental fit into the gig economy?

3‑minute read

Join our guest blogger, Devin McBrayer, as she explores the role of dental benefits in the fast-growing gig economy. Devin is a Legislative and Policy Analyst based in Sacramento, California.

The large majority of Americans have dental benefits — 77% in fact, according to the National Association of Dental Plans. Most Americans receive this coverage through their employer or groups like AARP. However, the job market is changing. Each year, more Americans are leaving traditional workplaces to join the gig economy and be their own boss. This shift could change the landscape of the benefits industry in the very near future.

Who’s in the gig economy?

Nearly one quarter of Americans earn some or all of their income in the gig economy, Edison Research estimates. Not surprisingly, a 2019 survey by Bankrate shows that almost half of Millennial workers work in the gig economy in some capacity. While that’s more than any other generation, a 2018 Prudential study notes that Gen X‑ers work the most hours per week in their gig jobs of any generation and are also more likely to rely exclusively on gig work for income. Baby boomers tend to use gig work to make extra money in retirement.

Do gig jobs offer dental benefits?

The increasing number of Americans working odd jobs for TaskRabbit or driving for Uber may not receive traditional employee benefits, including dental coverage. That can cause anxiety, when an estimated 44% of American gig workers rely on the gig economy as the sole source of their income. Gig workers might be able to afford to purchase individual dental coverage directly from a carrier or through their state’s exchange, but for some, that coverage might be more than they can afford. A 2017 study by Freelancers Union & Upwork found that over half of freelancers dipped into their savings each month to make ends meet.

On the other end of the spectrum, the gig economy workers using their gig to supplement their income from a more traditional employer may already have dental benefits from their primary job. If not, they may actually use the extra cash to purchase individual coverage.

What does the trend mean for benefits brokers?

Gig workers, especially those who have never had access to employer-sponsored benefits, may need education about the value of dental coverage. Adults with dental benefits are more likely to visit the dentist and seek preventive care, according to the 2017 Delta Dental Plans Association, Adult Oral Health and Well-being Survey. Routine dental exams can detect health problems early and lower the risk for costly conditions down the road like crowns, implants or even oral cancers.

The rise of the gig economy could also change the way that dental benefits are sold to this population. For workers in the gig economy exclusively, individual dental plans with competitive coverage and pricing will become increasingly important. Many gig workers use apps like Lyft and Postmates to earn money, which may signal that they’re more likely to purchase insurance online and look for plans geared toward tech-savvy consumers.

For more thought leadership from Delta Dental, subscribe to Insider Update, our newsletter for brokers, agents and consultants.

If you’re a benefits decision maker, administrator or HR professional, subscribe to our group newsletter, Word of Mouth.

Policy pops: Health care exchanges — 2019 enrollment results

3‑minute read

Join our guest blogger, Devin McBrayer, as she reviews the outcomes of the 2019 open enrollment period for health care exchanges. Devin is a Legislative and Policy Analyst based in Sacramento, California.

The open enrollment period to purchase Affordable Care Act (ACA)-compliant individual health insurance coverage off the health insurance exchanges for 2019 has come to an end. Sign-ups were off to a slow start at the beginning of the enrollment period, leaving many experts fearful that ACA plans would experience a significant decrease in enrollment. However, total enrollment only decreased by about 3.8% nationwide on Healthcare.gov, much of this due to a 15% reduction in new sign-ups.

While the total enrollment drop in individual health insurance plans on the exchange may have been less drastic than expected, it is still worth exploring why new enrollment decreased considerably and why year-to-year enrollment continues to decline. Several 2018 policy changes, combined with a growing economy, could help explain the decrease in enrollment in ACA plans for the 2019 plan year.

Are policy changes to blame?

In 2018, Congress reduced the tax penalty for not having an ACA-compliant health insurance plan to zero, effectively eliminating it. The federal government also shortened the open enrollment period and reduced marketing for open enrollment. Simultaneously, the federal government passed several rules that expanded the availability of cheaper and less comprehensive insurance plans such as short-term limited duration plans. No tax penalty for lack of coverage, combined with a shorter sign-up period and more plan options outside the exchanges, may help explain the enrollment decrease.

The impact of the economy

Another possible explanation for the drop in enrollment could be attributed to an improving economy. When open enrollment started on November 1, 2018, 2 million more jobs were added to the economy than were added at the same time in 2017. As more people head back to work, it’s possible that they’re gaining access to employer-sponsored health insurance, eliminating the need to renew their ACA plan.

What does this mean for dental?

Any loss in enrollment for medical coverage also means less people enrolled in dental coverage on the exchange. (As a reminder, dental coverage is an essential health benefit for children but not for adults.)

In the exchanges, dental coverage is included in some health plans or consumers can get a stand-alone dental plan and pay a separate premium. However, there is no way for consumers to purchase a stand-alone dental plan without also purchasing a medical plan on the health care exchange. Pushing for states and the federal government to allow for the independent purchase of stand-alone dental plans on state and federal health insurance exchanges is a top priority for the Public & Government Affairs team at Delta Dental.

For more thought leadership from Delta Dental, subscribe to Insider Update, our newsletter for brokers, agents and consultants.

If you’re a benefits decision maker, administrator or HR professional, subscribe to our group newsletter, Word of Mouth.

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