Several recent federal court decisions have held that the federal government owes insurers billions in cost-sharing reduction (CSR) payments. The Administration cut off those payments in October 2017, after efforts to repeal the Affordable Care Act (ACA) failed in Congress. Insurers promptly sued, arguing that the government had breached its statutory obligation to compensate insurers for offering the mandated low cost-sharing plans. Of note, the court decisions suggest that the government continues to owe these CSR payments even though most insurers were able to mitigate their losses by increasing plan premiums in 2018 and beyond. Because this litigation is almost certain to carry over into 2020 or beyond, this Expert Perspective post suggests that states not change their approach to insurers’ rating practices for 2020. However, states should consider what their approach should be if insurers do prevail in the litigation and states have an opportunity to recoup what otherwise would be a windfall for insurers.

Following guidance released earlier this fall, on November 29, 2018 the Centers for Medicare & Medicaid Services (CMS) released a discussion paper entitled “Section 1332 State Relief and Empowerment Waiver Concepts” to provide states with additional guidance and information about four types of waiver concepts that could be approved under the earlier guidance. This expert perspective reviews the four waiver concepts proposed in the discussion paper and the potential opportunities they present for states.

On November 9, 2018, the U.S. Department of Health & Human Services (HHS) published a proposed set of new standards for the Affordable Care Act (ACA) marketplaces. The preamble describes these standards as part of HHS’ efforts to improve marketplace “oversight and financial integrity.” If finalized, they will be effective for the 2020 plan year. HHS is asking for comments on the proposal by January 8, 2019.