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Halbig Decision Shouldn't Change Employer Planning for ACA Implementation
By: Jason Lacey

The recent decision by the Court of Appeals for the D.C. Circuit in Halbig v. Burwell (here) is certainly a major development in the ongoing saga of health care reform implementation. If it holds up, it would have a significant impact on the ACA as a whole, since both the employer and individual mandates are affected by the presence (or absence) of premium-assistance tax credits.

But this likely isn't the end of the line for tax credits in federally facilitated exchanges (which currently includes the Kansas exchange). The result in the case was not unexpected, given the makeup of the 3-judge panel. And there is a further expectation that the case will be given reconsideration by the full D.C. Circuit, which may lean the other way. (The government's lawyers have already requested such reconsideration.) So the decision could be short-lived.
Even if the decision stands, the Fourth Circuit's opposing decision in King v. Burwell (here) creates a "circuit split" on the issue, making the issue ripe for Supreme Court review. And we know the Supreme Court has been creative in its interpretation of things related to the ACA, like what is or isn’t a “tax." Concluding that the statutory reference to state-based exchanges really means either a state-based exchange or a federally facilitated exchange might not be a big stretch.
It's also unclear what immediate precedential impact (if any) the case has. The ruling would be controlling in the D.C. Circuit, but it may have limited impact outside of the circuit,      Continue Reading...
It's Exchange Day
By: Jason Lacey

If you're looking at a list of the milestones for implementation of health care reform, you'll see that we've just reached a big one: the opening of the public insurance exchanges.

Ok, so the day is largely symbolic. Nothing really takes effect today. It just happens to be the first day we can go take a look at what's available through these new marketplaces and begin the process of enrolling for coverage if we want. Coverage purchased through the exchanges between now and December 15 won't be effective until January 1, 2014. But it still feels like there has been a lot of anticipation in the run-up to the opening of the exchanges.

I happened to be awake after midnight last night, so I decided to try out the portal for the Kansas exchange. We don't have a state-based exchange (the federal government is running one for us), so I went to the federal exchange website (www.healthcare.gov) and starting working my way through the process.

I didn't get very far. One of the first things you have to do is set up an account. This requires selecting a user name and password and also answering a series of three security questions, so you can retrieve your user name and password later if you forget. The user name and password part worked fine. And the interface would allow me to answer the security questions, but it wouldn't tell me what the questions were.

It felt a little like that bit Johnny Carson used to do      Continue Reading...

The Landscape Becomes Clearer for State Insurance Exchanges
By: Jason Lacey

Employers are not directly affected by the establishment of state insurance exchanges under health care reform, but understanding the exchange landscape helps clarify the bigger picture of health care reform and how employers fit within that.

So here's where we are today: The deadline ran last Friday for states to file applications to run an exchange in partnership with the federal government for 2014. Some did that, but as I've written about previously (here), the response has been underwhelming. States that do not have their own exchanges and do not partner with the federal government will default to having a federally facilitated exchange. 

The Kaiser Family Foundation has an interesting graphic (here) that illustrates what's going on in each state. It reflects that only 17 states (plus the District of Columbia) will run their own exchanges, 7 states will have partnership exchanges, and 26 states will default to the federal exchange.

Depending on your political view, that's either a good first step toward national uniformity in the health insurance market or a lot of federal involvement.

Either way, a lot of questions remain, including whether and how these exchanges will be fully functional by October (when they need to begin enrollment for 2014) and what the exchange interface will look like. The federal government continues to believe it is on track (see here), but there is a lot of ground to cover between now and then.

Employers and Exchanges: What Do You Want to Know?
By: Jason Lacey

Each year the American Bar Association’s Joint Committee on Employee Benefits (JCEB) holds a conference where regulators from the IRS, Treasury, DOL, and HHS are invited to join with private lawyers and advisors for an open discussion on current topics. It’s both an opportunity to learn and an opportunity to share ideas.

This year’s conference is in March, and I’ve been invited to help facilitate a session on the state and federal insurance exchanges that will go into effect later this year. As I’m preparing, I’m thinking specifically about how the exchanges will relate to employers and employer-provided group health coverage. And I’m wondering what questions employers might have about the exchanges and how they will be affected.

So what are your thoughts and questions? Send me an email if you’ve got something on your mind. I can’t promise I’ll get you an answer, but I will try to work your feedback into my presentation, and who knows - maybe we’ll have some opportunity to shape the regulators’ thinking on how the exchanges will or should impact employers. 

HHS Releases List of Conditionally Approved State Insurance Exchanges
By: Jason Lacey

HHS has released a list of the state insurance exchanges that have received conditional approval for operation in 2014 (with open enrollment beginning in October 2013) - and the list is short.

States receiving conditional approval for state-based exchanges:

  1. Colorado
  2. Connecticut
  3. District of Columbia 
  4. Kentucky
  5. Maryland
  6. Massachusetts
  7. Minnesota
  8. New York
  9. Oregon
  10. Rhode Island
  11. Washington

States receiving conditional approval for state partnership exchanges:

  1. Delaware

This could leave as many as at least 39 states (including Kansas) in which qualified health plans will be available in 2014 only through a federally facilitated exchange.

States still have until February 15, 2013 to file declaration letters and applications to establish a state partnership exchange.

For additional background on exchanges and exchange implementation, see here, here, and here.

Proposed Regulations Sketch Out Framework for Identifying Essential Health Benefits
By: Jason Lacey

New proposed regulations from HHS have outlined a framework for identifying the package of "essential health benefits" (EHB) that must be offered by certain health plans beginning in 2014.

Affected Plans. The plans directly affected by the rules include "qualified health plans" (or "QHPs") that will be offered through an exchange, and any other non-grandfathered individual and small-group insurance policies, whether or not offered through an exchange.

Defining Essential Health Benefits. Rather than defining a package of essential health benefits that must be covered by all affected plans, the regulations propose that essential health benefits be determined on a state-by-state basis by reference to an "EHB-benchmark plan" identified by each state (or identified by default, if the state does not make an affirmative designation). The benchmark plan may be selected from one of the following:

  1. The largest plan by enrollment in any of the 3 largest small-group insurance products in the state.
  2. Any of the largest 3 state employee health benefit plans by enrollment.
  3. Any of the largest 3 national health plan options available to Federal employees under the Federal Employees Health Benefit Program.
  4. The largest insured commercial HMO operating in the state.

An Appendix to the proposed regulations lists, for each state, the plan that the state has already designated as its benchmark plan or that will be the default plan, if the state does not make an affirmative designation.

List of Largest State Small-Group Products. Earlier this year, HHS      Continue Reading...


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Don Berner, the Labor Law, OSHA, & Immigration Law Guy
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Boyd Byers, the General Employment Law Guy
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Jason Lacey, the Employee Benefits Guy
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