by Leslie Small
In a proposed rule released on Nov. 25, CMS floated some
ambitious changes to the regulations governing the Affordable Care Act (ACA)
exchanges, most notably allowing states to ditch a centralized health plan
marketplace and instead rely on private web brokers, agents and insurers to
enroll people in coverage.
However, experts say that the most controversial parts of the
rule may never be implemented as written.
The Trump administration has a very short time period in which
it must finalize the 2022 Notice of Benefit and Payment Parameters (NBPP) if it
wants to complete that task before Joe Biden is inaugurated as the next
president.
If the rule isn't finalized before then, the Biden
administration could presumably pull it back, says Katie Keith, a health care
attorney and research professor at Georgetown University's Center on Health
Insurance Reforms. And even if the NBPP is finalized, there is precedent for a
new administration to review all regulations passed at the last minute by the
outgoing administration. However, to rescind all or part of a final rule would
essentially require starting over in the rulemaking process.
In fact, the Biden camp could very well follow the precedent set
by the Trump administration, which took over not long after the Obama administration
finalized the 2018 NBPP in December 2016, Keith says. In that case, rather than
redo the whole NBPP, the Trump administration issued a "market
stabilization rule" that targeted only the parts of the NBPP that it
disagreed with.
For the Biden administration, one of the top targets for
reversal is likely the NBPP's provision that paves the way for states to
abandon a public, centralized insurance marketplace. The new rule lets states
use so-called direct enrollment and enhanced direct enrollment pathways as a
full-fledged alternative to their public enrollment websites, without having to
obtain a section 1332 waiver.
Joel Ario, managing director of Manatt Health, says that
eliminating public insurance exchanges "could cause loss of enrollment and
other kinds of disruption."
"The public marketplaces were set up to be sources of truth
on the different options that consumers could rely on," he tells AIS
Health. And while direct enrollment can augment that setup, "most
definitely, in my mind, it's not a good replacement for HealthCare.gov."
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