Broker blog from Delta Dental

Tag: Jeff Album

The 2020 elections and the ACA: What’s at stake for dental insurance

For the dental insurance industry, the upcoming November elections are among the most important in recent history. Depending on the outcome, the Affordable Care Act (ACA) could be affected significantly, which in turn could reduce access to oral health care for millions of Americans.

What’s going on with the ACA?

The future of the ACA is in question. In the case of California v. Texas, scheduled to be heard before the United States Supreme Court on November 10, the court will decide whether the law should be struck down, and which elements may or may not be saved.

A previous Insider Update article looked at how the upcoming Supreme Court nomination might affect the fate of the ACA. We’ll now consider the potential impact of the upcoming elections.

The upcoming election: What could happen?

On November 3, U.S. voters will decide whether to reelect President Donald Trump, a Republican, or replace him with former Vice President Joe Biden, a Democrat. They’ll also decide who will fill many United States Senate and House of Representative seats. Three outcomes are possible: 

  • A clean sweep by the Democrats. Democrats gain control of the White House and Senate, and retain control of the House.
  • A partial sweep by the Democrats. Democrats gain control of the White House and retain control of the House, but Republicans keep control of the Senate.
  • A return to status quo. Republicans keep the White House and Senate, and Democrats retain control of the House.

Current polling data strongly suggests that Democrats will retain the House, so a Republican sweep is unlikely.

How could a Democratic sweep affect the dental insurance industry?

A clean sweep for the Democrats, not surprisingly, would likely preserve and strengthen the ACA, regardless of the Supreme Court’s decision on California v. Texas, said Jeff Album, Vice President of Public & Government Affairs for Delta Dental.

“With Democrats controlling all three branches, Congress can quickly restore almost anything the Supreme Court might strike down, and do so long before the court’s decision becomes effective,” Album said.

Beyond the ACA, industry experts predict a clean sweep could lead to many other outcomes relevant to the dental industry:

  • Medicare could become available to people younger than 65, which could open new Medicare Advantage (MA) markets in which dental is often offered.
  • A dental benefit could be added to Medicare Part B, or as separate Part “T” (for teeth). Depending on the extent of the benefit provided, a Part B dental benefit could create or eliminate opportunities for dental insurers. A comprehensive Part B benefit could replace the private dental coverage purchased by millions of Medicare beneficiaries today, give growth to dental as a part of Medi-Gap policies, and eliminate employer-sponsored retiree dental plans. However, a Part B dental benefit limited to only preventive care could create opportunities for insurers to offer supplemental benefits plans. A Part B dental benefit would also require that all Medicare Advantage plans provide at least the same set of dental benefits, which would result in these plans receiving larger payments from the U.S. Centers for Medicare & Medicaid Services (CMS). About a third of MA plans today don’t offer dental.
  • A “public option” could be created. While the Biden campaign hasn’t offered many details, a public option is conceptually a federal health insurance program to be offered on state Health Insurance Exchanges as an alternative to private plans. It would likely be subsidized for lower income Americans, and partially or fully paid by enrollees who currently don’t qualify for subsidies. While dental coverage isn’t guaranteed to be a benefit for anyone other than children, an intriguing possibility is that it could be made available on a voluntary basis.
  • The public option might even entail automatic enrollment for low-income people into an existing Medicaid managed care or Medicaid fee-for-service plan.
  • Balance billing, or “surprise billing,” by out-of-network providers could become regulated by federal law, but it’s unclear how this might affect dental benefits, if at all.

How about a partial Democratic sweep?

A partial sweep, with a Republican-controlled Senate able to prevent legislation beginning in the House from reaching the president, would likely thwart a public option, strengthening the ACA or adding dental coverage to Medicare. However, a Biden White House could preserve the ACA as it currently exists, and eliminate through executive order moves by the prior administration to weaken it.

“Dramatic change is unlikely,” Album said.

Paired with an unfavorable Supreme Court ruling, however, a partial sweep could spell trouble for the ACA, Album said.

“It makes recovering from an adverse Texas decision in the Supreme Court much harder because the Senate Republicans may support many of the cutbacks an adverse SCOTUS decision could cause,” Album said. “And should the Supreme Court strike the ACA entirely, it’s hard to imagine Democrats and Republican agreeing on replacement.”

And what if we maintain status quo?

Should the country continue with a Republican president and divided Congress, the outcome of California v. Texas is uncertain.

A ruling that either leaves the ACA in place, or finds that the law’s individual mandate can be eliminated while leaving the ACA otherwise intact, means little change. But a ruling that the ACA is inseverable from the mandate means millions will lose coverage they have today, with Congress likely unable to respond.

Album predicts that a Republican White House would probably continue to work through executive orders to weaken the ACA and make ACA-non-compliant alternatives more widely available.

The worst-case scenario for the ACA occurs if federal funding for the program is eliminated. As many as 2 million people with Exchange-based dental benefits in the Exchanges could lose that coverage. For insurers, the risk is most acute for those with sizeable managed Medicaid and Exchange business.

“Marketplace changes could be profound,” Album said.

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.

Dental and the ACA in 2017

New reports speculating on the future of the Affordable Care Act have come out almost daily since America elected Donald Trump to be the next president. Here at Delta Dental, our leadership involved with health care reform breaks down what all the hubbub may mean for the dental benefits industry in 2017.

Clients and enrollees won’t feel effects of any major changes for a few years

No “significant change to the health care market — medical or dental” is expected for three or four years, says Jeff Album, Delta Dental’s vice president of Public and Government Affairs.

“Repeal and replace has changed to repeal and delay,” Album says. “It’s clear that both Congress and the new administration are going to want to minimize disruption to the existing system.”

Album expects Congress will take action early in 2017 to defund parts of the law, but postpone when that takes effect. In the meantime, lawmakers will determine how the replacement will look.

As the new law is developed, he says, Delta Dental will take an active role by helping the industry “define its advocacy agenda” in terms that best serve existing and prospective customers’ needs.

Health Insurance Tax could be modified or repealed in 2017

Early this year, Album says, Congress will likely seek to find common ground on the future of taxes associated with the law, including the Cadillac tax and the health insurance tax (HIT). The HIT tax, charged to insurance carriers based on premiums earned, was put on a one-year moratorium for 2017.

The fate of the HIT is the “biggest question” this year for the Actuarial and Underwriting departments at Delta Dental as they prepare for 2018, says Tom Leibowitz, vice president and chief actuary.

Overall, Leibowitz says he expects rates for dental benefits will continue to stay largely stable for 2018.

“Unlike health care, dental had fairly small impact on rating requirements from the ACA,” he says, “so those huge cost increases that have been seen on the public exchanges for medical are not taking place in the dental world.”

Public exchanges are sticking around for now, and Delta Dental will stick with them

Delta Dental and its affiliate companies have already started work on 2018 exchange plan offerings.

“We are committed to the exchanges as long as they’re a viable platform through which we can sell standalone pediatric and family dental plans,” says Andrea Fegley, vice president of Legal & Regulatory. “Participation in public health care exchanges aligns well with our mission to advance dental health and access.”

Public exchange benefit offerings complement Delta Dental’s existing business strategy, adds MohammadReza Navid, vice president of Sales.

“Regardless of the ACA’s future, Delta Dental will continue to find innovative ways to increase dental access for all,” Navid says.

Both agreed that the company’s planning and strategic initiatives will keep Delta Dental at the forefront of the industry.

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