The Unintended Effects of

The Unintended Effects of Healthcare Reform TOM SUROVY, PRINCIPLE COMPLIANCE ATTORNEY

CONTENTS CHILD-ONLY POLICIES... 3 PRESCRIPTIONS FOR NONPRESCRIPTION OVER-THE-COUNTER DRUGS... 4 COMMISSIONS FOR INSURANCE AGENTS AND BROKERS... 4 2 The unintended effects of healthcare reform AUGUST 2012

The Patient Protection and Affordable Care Act ( the Act ) was the most discussed and debated piece of legislation enacted during President Barack Obama s first term in office. While much of the debate has centered around what the Act intends to do, there have been unintended effects that have stirred up reactions from several different stakeholders. This paper takes a look at some of those unintended consequences and what actions the stakeholders involved have taken in response to those results. Child-Only Policies One of the unintended consequences of the Act is that insurers are no longer offering childonly coverage in many markets. While one of the primary goals of the Act is to provide more Americans with health insurance coverage, the law has prompted many insurers to leave the child-only health insurance market. Insurers, such as Anthem Blue Cross, cited uncertainty as to how the provisions of the Act will be implemented. 1 Specifically, the insurers were concerned about the provisions limiting the application of pre-existing condition exclusions for children under 19. Insurers feared that only sick children would apply for child-only policies, creating a market where claims would greatly outweigh premiums. Therefore, the insurers stopped offering child-only health insurance coverage in many markets. A report released by the Senate Health, Education, Labor and Pensions ( HELP ) committee in August of 2011 showed that access to child-only plans declined in the year following the enactment of the Act. 2 Seventeen states reported that no insurers were selling child-only plans to new enrollees and 39 states reported that at least one insurer exited the child-only market. 3 In response to the insurers actions, Kathleen Sebelius, the Secretary of the Department of Health and Human Services ( HHS ), issued a letter outlining options available to insurers and states to offer child-only policies. 4 Secretary Sebelius stated that the Act and its related regulations allowed: Issuers in the individual market to determine the number and length of open enrollment periods for children under 19 (as well as those for families and adults), consistent with state law Rates to be adjusted for health status as permitted by state law (note: the Affordable Care Act prohibits health status rating for all new insurance plans starting in 2014) The imposition of a surcharge for dropping coverage and subsequently reapplying for it if permitted by state law The implementation of rules, consistent with state law, to help prevent employers from encouraging workers to enroll children in child-only policies instead of employersponsored insurance The sale of child-only policies that are self-sustaining and separate from closed child-only books of business if permitted by state law 5 In addition to the HHS s action, states have responded to the insurers decision. Several states established uniform enrollment periods, while some like California, Colorado, and Kentucky took other measures, such as banning insurers from offering policies in the individual market for five years if they fail to offer childonly coverage, or requiring insurers offering individual adult policies to offer individual child policies. 6, 7, 8 As part of those requirements, states like Colorado and Kentucky established 3 The unintended effects of healthcare reform AUGUST 2012

limited open enrollment periods to reduce the risk for insurers that parents will only buy child-only policies when their children become sick. This reduction of risk acted as an incentive for insurers to remain or return to the child-only markets in those states. By 2012, the availability of child-only coverage had improved slightly from 2011. 9 This increase, at least in part, is due to the actions of the federal and state governments. States are continuing to address the issue, as Georgia recently enacted legislation requiring insurers selling individual health policies to offer child-only policies during an open enrollment period. 10 The availability of child-only coverage will remain an issue until January 1, 2014, when insurers are required to accept all applicants without charging different premiums on the basis of pre-existing conditions. Prescriptions for Nonprescription Over-the-Counter Drugs Another provision in the Act that created an unintended effect is the provision that prohibits flexible spending accounts ( FSAs ) to be used for over-the-counter medications without a prescription. Physicians are being inundated with requests from patients for prescriptions for over-the-counter medications so that the patients can utilize their FSAs to pay for them. This has created an increase in health care costs because people are making appointments for the sole purpose of obtaining these prescriptions. Some doctors have responded by placing a surcharge on each prescription request, which may discourage some patients from asking for a prescription, as the surcharge could outweigh the tax savings from using a flexible-spending account while others will only write prescriptions for chronic conditions. 11 Pharmacies have also incurred increased costs because the over-the-counter drugs are subjected to the regulatory requirements of any prescription drugs. Therefore, the pharmacies must process the over-the-counter drugs like a prescription, which includes generating a label and putting each prescribed drug in its own bag. 12 Several groups support repealing the provision, including the American Medical Association, the American Association of Retired Persons ( AARP ), the Consumer Healthcare Products Association, the National Association of Manufacturers, and the U.S. Chamber of Commerce. 13 On April 25, 2012, the House Ways and Means Oversight Committee conducted hearings on the provision s impact and its proposed repeal. 14 The repeal has bi-partisan support 15. The argument raised by those opposed to the repeal is that it would cost the federal government $7 billion over 10 years in lost tax revenue and that patients with FSAs can still obtain the over-the-counter medicines, they just aren t able to pay for them with FSA funds. 16 By a 24-9 vote, the House Ways and Means Oversight Committee ordered the bill seeking to repeal the provision to be reported to the full House of Representatives. 17 The language of that bill, H.B. 5842, was included in the Health Care Cost Reduction Act, which passed the House of Representatives by a vote of 270-146. 18 Even if the bill sponsors are able to overcome the Democratic majority to get the bill passed in the Senate, it would face a veto from President Obama. 19 4 The unintended effects of healthcare reform AUGUST 2012

Commissions for Insurance Agents and Brokers The Medical Loss Ratio ( MLR ) provision of the Act requires insurers to set aside at least 80 percent of individual and small group (and 85 percent for large group) premium revenue for medical or quality improvement expenses. Insurers must provide rebates to insureds if their MLR fail to meet those thresholds. As a result of these requirements, insurers have reduced commissions to insurance agents. A survey by the Agent/Broker Alliance reports that more than 70 percent of the agents responding reported reduced business income after the enactment of the Act. 20 Of those responding, 25 percent reported income reductions of 21 to 50 percent while another 25 percent reported losses between 11 and 20 percent. 21 A subsequent report issued by the Government Accountability Office confirmed that insurers did in fact decrease their commissions to brokers in order to increase their MLR and avoid paying rebates to consumers. 22 As a result, half of the agents responding reported that they have stopped offering certain health insurance products or ended affiliations with certain companies because it was no longer economically feasible. 23 Additionally, 41 percent of the respondents stated that they will no longer operate in certain markets, like the individual market. 24 Therefore, not only does it appear that the Medical Loss Ratio provision is negatively affecting agents and brokers, but it is also limiting the choices for consumers seeking health insurance coverage. In order to address this issue, the National Association of Insurance Commissioners ( NAIC ) adopted a resolution recommending that Congress exempt broker compensation from the MLR calculation. 25 The NAIC stated that the functions carried out by brokers are essential to consumers and that the level and quality of expertise, service, and advocacy provided by brokers cannot be sustained and will be diminished without adequate compensation. 26 The NAIC also recommended that the HHS take any available actions immediately to address the adverse effects of the MLR rule, including: Approving state MLR adjustment requests Placing an immediate hold on implementation and enforcement of the MLR requirements relative to agent and broker compensation Considering the NAIC s finding that a significant portion of insurance producer activities are dedicated to consumer advocacy and service and therefore classifying an appropriate portion of producer compensation as a health care quality expense for purposes of Section 2718 of the PHSA. 27 Both Congress and HHS took actions related to NAIC s recommendations. In March 2011, a bipartisan group of Representatives introduced HB 1206 to exempt broker compensation from the MLR calculation. 28 A companion bill, SB 2288, was introduced in the Senate in 2012. 29 The bills were referred to committee, where they have remained without any further action, though that may change with the Supreme Court s decision to uphold the Act. On December 7, 2011, HHS issued a final rule on the MLR requirements set forth by the Act. However, HHS chose to not adopt the NAIC s recommendation regarding broker commissions, and therefore, the regulations still treat them as administrative costs for purposes of the MLR calculation. 30 By 5 The unintended effects of healthcare reform AUGUST 2012

February of 2012, HHS had approved the MLR adjustment requests of six states, though it determined that no adjustment was necessary in 10 states. 31 Consumer groups such as Consumer Watchdog contend that the bills in Congress would deal a death blow to one of health reform s most important consumer protections, and would gut federal health reform costsaving rules and increase consumer health insurance premiums to protect brokers sales commissions. 32 The Kaiser Family Foundation ( KFF ) found that the effect of the MLR on broker commissions will vary from state to state and from insurer to insurer. 33 The KFF also reported that some insurers were already meeting the MLR thresholds without reducing commissions, so there was no need for exemption in those cases. 34 Both Consumer Watchdog and KFF concluded that exempting the commissions would eventually result in reductions in rebate amounts to consumers and increased premiums. 35, 36 Like many of the issues related to the Patient Protection and Affordable Care Act, the debate over the Act s unintended effects continues. As more aspects of the bill are implemented, there are likely to be more effects on the health insurance industry that were not intended by the Act, leading to debate at the federal and state level as to how to address those effects. 6 The unintended effects of healthcare reform AUGUST 2012

References 1 Individual Business to Suspend Child-Only Coverage Effective 9/23/10 (Press release). Anthem Blue Cross. September 17, 2010 <http://view.email.anthem.com/?j=fe531674726c06787d1c&m =feff1074766104&ls=fdd0157074640178771371756d&l=fe61157 67c66067c751d&s=fdf01572756d027a72137677&jb=ffcf14&ju= fe201678716103747c1473> 2 United States Senate, Committee on Health, Education, Labor and Pensions, RANKING MEMBER REPORT: Health Care Reform Law s Impact on Child-Only Health Insurance Policies, Michael B. Enzi, August 2, 2011 <http://www.help.senate.gov/ imo/media/doc/child-only%20health%20insurance%20report%20aug%202,%202011.pdf> 3 Enzi 4 Secretary Sebelius Leads Efforts to Improve Access to Coverage for Children with Pre-Existing Conditions, Urges States to Take Action (Press release). United States Department of Health & Human Services. October 13, 2010 <http://www.hhs.gov/news/ press/2010pres/10/20101013a.html> 5 United States Department of Health & Human Services 6 CA LEGIS 656 (2010) 7 KY Advisory Opinion 2011-1 8 2011 CO S.B. 128 (NS) 9 Children s Health Insurance Options by State for 2012, ehealthinsurance, Amir Mostafaie, February 1, 2012 <http://blog. ehealthinsurance.com/2012/02/childrens-health-insuranceplans-2012/> 10 2011 GA H.B. 1166 (NS) 11 In Health Law, Rx for Trouble, The Wall Street Journal, Janet Adamy, March 9, 2011 <http://online.wsj.com/article/ SB10001424052748704692904576166554110739560. html?mod=googlenews_wsj> 12 Adamy 13 Doctors Pressured to Write Prescriptions for OTC Drugs, American Medical News, Charles Fiegl, May 7, 2012 <http://www. ama-assn.org/amednews/2012/05/07/gvl10507.htm> 14 Fiegl 15 Fiegl 19 Executive Office of the President, Statement of Administration Policy: H.R. 436 Health Care Cost Reduction Act of 2012, June 6, 2012 <http://www.whitehouse.gov/sites/default/files/omb/ legislative/sap/112/saphr436r_20120606.pdf> 20 The Health Insurance Agent & Broker Alliance, Letter to the NAIC Professional Health Insurance Advisors (EX) Task Force, March 21, 2011 <http://alankatz.files.wordpress.com/2011/03/ agent-broker-alliance-ltr-to-naic-20110321.pdf> 21 The Health Insurance Agent & Broker Alliance 22 GAO 11-711, 2011 WL 3872722 23 The Health Insurance Agent & Broker Alliance 24 The Health Insurance Agent & Broker Alliance 25 National Association of Insurance Commissioners, Resolution Urging the U.S. Department of Health and Human Services to Take Action to Ensure Continued Consumer Access to Professional Health Insurance Producers, November 22, 2011 <http://www. naic.org/documents/committees_ex_phip_resolution_11_22.pdf> 26 National Association of Insurance Commissioners 27 National Association of Insurance Commissioners 28 2011 FD H.B. 1206 (NS) 29 2011 FD S.B. 2288 (NS) 30 76 FR 76574-01 31 2/16/12 HHSDOCS (No Page), 2012 WLNR 3452837 32 BenefitsPro.com, Consumer Group: 3 Reasons Why Health Reform Won t Put Brokers Out of Business, Jenny Ivy, November 14, 2011 <http://www.benefitspro.com/2011/11/14/consumergroup-3-reasons-why-health-reform-wont-pu> 33 The Kaiser Family Foundation, Insurance Brokers and Medical Loss Ratio, Cynthia Cox and Larry Levitt, December 8, 2011 <http://healthreform.kff.org/notes-on-health-insurance-andreform/2011/december/insurance-brokers-and-the-medicalloss-ratio.aspx> 34 The Kaiser Family Foundation 35 BenefitsPro.com 36 The Kaiser Family Foundation 16 Fiegl 17 2011 FD H.B. 5842 (NS) 7 The unintended effects of healthcare reform AUGUST 2012

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