Affordable Care Act (ACA)

In a brief Order issued on December 5, 2016, in U.S. House of Representatives v. Burwell, the U.S. Court of Appeals for the D.C. Circuit granted the motion filed by the U.S. House of Representatives (House) seeking to put the lawsuit challenging the Affordable Care Act’s (ACA’s) cost-sharing subsidies on hold until the Trump administration takes over.  In granting the stay, the court also directed the parties to file motions to govern further proceedings for the case by February 21, 2017.  The Order was issued by the three judge panel hearing the case, Judges Henderson, Tatel and Srinivasan.  Judge Henderson was appointed by President George W. Bush, Judge Tatel by President Clinton and Judge Srinivasan by President Obama.

As we have discussed in prior posts, the House is asking the court to bar the issuance of cost-sharing subsidies to eligible ACA policyholders unless and until Congress appropriates the funds. The ACA cost-sharing reduction program reduces co-pays, co-insurance and deductibles for individuals with incomes of up to 250% of the federal poverty line who enroll in “Silver” plans through the healthcare exchanges. If the lower court decision agreeing with the House position is affirmed, one of the central features of the ACA making insurance and healthcare coverage affordable to millions of Americans would be removed.

In a motion filed after the November election, the House asked the court to put the case on hold to give the incoming Trump administration the opportunity to decide whether to amend, repeal or replace the ACA. According to the motion, representatives of the House and the Trump transition team are in discussions regarding options that could resolve the matter.

What lies in store for the ACA is being closely watched.  Few programs have been as controversial, have had such broad impact and great consequence.  The new administration, Congress and the many stakeholders will be debating and seeking to influence future policy directions.  The details of what is broadly described by terms such as repeal, repeal and replace, repeal and delay – will determine the future of healthcare for years to come.

The Department of Justice (DOJ) has filed its response to the motion filed on behalf of the U.S. House of Representatives (House) seeking to put the lawsuit challenging the Affordable Care Act’s (ACA’s) cost-sharing subsidies on hold until the Trump administration takes over. Not surprisingly, the DOJ strongly opposes the House request.

In U.S. House of Representatives v. Burwell, the House is asking the court to bar the Obama administration from issuing cost-sharing subsidies to eligible ACA policyholders unless and until Congress appropriates the funds. The ACA cost-sharing reduction program reduces co-pays, co-insurance and deductibles for individuals with incomes of up to 250% of the federal poverty line who enroll in “Silver” plans through the healthcare exchanges. The administration has argued that the House does not have legal standing to bring its suit and in any case, the ACA supports payment of the cost-sharing subsidies. The district court agreed with the House and the administration has appealed the rulings to the Court of Appeals for the D.C. Circuit.

In a motion filed after the November election, the House is asking the court to put the case on hold to give the incoming Trump administration the opportunity to decide whether to amend, repeal or replace the ACA. According to the motion, representatives of the House and the Trump transition team are in discussions regarding options that could resolve the matter.

In its response opposing the hold request, the DOJ notes that the monthly subsidy payments have been made since 2014 and Congress has taken no legislative action to restrict the ongoing payments. The DOJ says the House suit is unprecedented and raises separation of powers concerns. According to the DOJ, the case “meddl[es] in the internal affairs of the legislative branch” by allowing one House of Congress to circumvent the legislative process. The DOJ states that if the House wants to eliminate the subsidies it should enact legislation, which would require the House to obtain the agreement of the Senate, present the resulting measure to the President, and to accept responsibility for the results.

The DOJ says that the House is seeking to decide how laws will be executed – but that is the job the constitution assigns to the executive branch. Further, the DOJ argues that the House is asking the court to go beyond the judicial branch’s constitutional authority as well. According to the DOJ, the election did not change these constitutional principles and the incoming administration likely won’t agree that the House should be able to alter the way the executive branch administers federal law.

Beyond the procedural concerns, the DOJ states that the lower court adopted a misguided interpretation that “would thwart the structure of the ACA’s carefully calibrated system of subsidies, severely disrupt the insurance markets, and – perversely – lead to substantially greater federal expenditures.” The DOJ referred to amicus briefs filed by the insurance industry expressing concerns about the dire impact sudden removal of the subsidies could have on the insurance market.

The DOJ points out that the ACA and its subsidy provisions remain the law of the land and requiring the House to file its appellate brief on the agreed upon schedule will not constrain the incoming President, as the House asserts. Denying the motion will simply allow the appeal to proceed in an orderly and timely fashion.

The DOJ did offer a way out for the House to avoid proceeding with the case, stating that the administration has no objection if the House wishes to dismiss the case and if the court vacates the lower court decision that agreed with the House position. With such a resolution being highly unlikely, the House’s request is now teed up for the court to rule on the motion.

We will continue to follow this case so check back for further developments.

A link to the DOJ response is below:

Attorneys for the United States House of Representatives (House), in U.S. House of Representatives v. Burwell, the case challenging certain cost-sharing subsidies in the Affordable Care Act (ACA), filed a motion asking the D.C. Circuit Court of Appeals to put a hold on the briefing in the case until after the Trump administration takes office.

As reported in our prior posts, the House filed suit asking the court to bar the federal government from issuing cost-sharing subsidies to eligible ACA policyholders unless and until Congress appropriates the funds. The ACA cost-sharing reduction program reduces co-pays, co-insurance and deductibles for individuals with incomes of up to 250% of the federal poverty line who enroll in “Silver” plans through the healthcare exchanges.

The Obama administration has argued that the House does not have legal standing to bring its suit. The administration also argued that the ACA supports payment of the cost-sharing subsidies. After the district ruled that the House had standing to bring the suit and also agreed with the House on the merits of its claim, the Obama administration appealed the rulings on both issues to the Court of Appeals for the D.C. Circuit.

On October 24, 2016, the Obama administration filed its opening brief asking the court to overturn the lower court’s decision. The House’s answer brief is due on December 23rd and the administration’s reply brief, which would complete the briefing of the case, is due on January 19th, the last day full day of the Obama administration.

In its motion filed on November 21st, the House has asked the court to pend the case until February 21st, to give the incoming Trump administration the opportunity to decide whether to amend, repeal or replace the ACA. According to the motion, representatives of the House and the Trump transition team are in discussions regarding options that could resolve the matter. The House motion notes that the Obama administration opposes the request for a hold.

The House argues that the court has the authority to manage its docket and stay the proceedings if it chooses to do so. It provides examples of other cases where courts have held proceedings in abeyance when there has been a change in administrations.

The House also says that putting the matter on hold makes sense because there is a high degree of likelihood of a meaningful change in policy in the new administration that could either obviate the need for resolution of the appeal or affect the nature and scope of the issues presented for review. According to the House, “in light of the President-Elect’s stated position, and the potential for resolution of this matter, the requested abeyance will serve to prevent the unnecessary and inefficient expenditure of valuable public resources in all three branches of the federal government that could otherwise result from unnecessary and premature briefing and judicial consideration of this appeal.”

Citing other pressing duties and a limited staff, the House asks that if the court does not hold the matter in abeyance, that it allow the House a 45-day extension of time to file its answer brief. Such an extension would, of course, accomplish the same end sought by the request for abeyance, that is, the opportunity for the next administration and the House to reconsider their positions with regard to the litigation.

The Obama administration’s response to the House motion is due on December 5, 2016. It will be interesting to see how the administration responds. Short-term extensions of time are typically uncontroversial, but in this case, with the possibility of the case being poised for a Court of Appeals decision while the Obama administration is still in office, the stakes of holding the case in abeyance or granting an extension of time are magnified.

Also, while there may be agreement between the incoming administration and the House on the advisability of the subsidies, other issues may come into play in determining the position of the new administration regarding the standing issue addressed in the case. Representatives of the new administration may have a different view than the House regarding the relative powers of the different branches of government.

Furthermore, if the court agreed with the House position, sudden elimination of the subsidies could create chaos in the insurance system, which the new administration and the Republican majority Congress may wish to avoid. On the other hand, a court decision upholding the subsidies would put the House and administration in the difficult political position of either accepting the subsidies, thus alienating ACA opponents, or removing them, and alienating those who rely on the subsidies to afford their healthcare coverage.

The preference of the House and the new administration appears to be to seek a settlement or resolution that avoids having the court resolve these questions and allows the new administration’s plans regarding the ACA to be developed and rollled out in a more controlled fashion.

We will continue to watch developments in this important case.

Readers of this blog may recall that on September 9, 2016, the federal Department of Health and Human Services (HHS) – through its Centers for Medicare and Medicaid Services (CMS) – announced that it is open to discussing resolution of claims made by the Qualified Health Plans (QHPs) providing coverage on the Affordable Care Act (ACA) exchanges seeking payment of amounts owed under the Risk Corridors program. That announcement also said that “[a]s in any lawsuit, the Department of Justice is vigorously defending those claims on behalf of the United States.” In Motions to Dismiss filed in the lawsuits seeking Risk Corridors payments brought by Blue Cross and Blue Shield of North Carolina, Moda Health Plan and Land of Lincoln Health Insurance Company, the Department of Justice (DOJ) has delivered on that promise.

Notably, the arguments in the DOJ’s motions go further than the arguments it has made in the past in other cases, such as the putative class action filed by the Oregon co-op, Health Republic Insurance Company (Health Republic of Oregon), and assert that the government is under no obligation to make the Risk Corridors payments if the program is not funded. The House of Representatives, observing that the DOJ did not file a similar motion to dismiss in the Health Republic of Oregon case, requested that it be permitted to file an amicus brief in that case to bring the arguments in the recent DOJ motions to the court’s attention.

In its recent briefs, the DOJ has reiterated the arguments it has made previously in the Health Republic Oregon case stating that because the three-year payment framework for Risk Corridors has not yet run its course, QHPs have no present right to full payment of their receivables from the program. Even though additional funding in the near future seems improbable, DOJ nevertheless argues that whether sufficient funds will be available to make full payment of claims for any particular benefit year or at some point in the future is unknown. As a result, DOJ asserts the claims cannot be brought at this time.

But, in a significant expansion of the arguments made previously in Risk Corridors litigation, in the motions to dismiss, DOJ also argues that the ACA does not require that risk corridors payments be made in excess of collections from QHPs. According to the DOJ, the program was intended to be self-funding pointing out that the ACA contains no reference to any other source of funds.

The DOJ refers to the appropriations riders that Congress enacted after the ACA’s passage that prohibit HHS from using other sources of money to fund the Risk Corridors program to reinforce its position that liability for Risk Corridors payments is limited to amounts collected under the Risk Corridors program. The DOJ relies on cases where courts have said that provisions enacted in annual appropriations laws can amend money-mandating provisions in previously enacted law, which allows a subsequent law to eliminate or reduce the government’s obligation to pay.

The QHPs have also argued that the government’s failure to make Risk Corridors payments violates the contracts QHPs must sign to offer plans on the exchanges. The DOJ’s response is that the QHP contracts are limited in scope and don’t apply to Risk Corridors payments. They assert that the United States has no contractual obligation to make Risk Corridors payments and that any amounts determined to be owed or due for Risk Corridors arise only as a matter of statute and regulation. As a result, the only recourse for QHPs is through Congress or HHS, not through the courts.

The DOJ also rejects the argument that there is an implied contractual obligation that the government make Risk Corridors payments because the QHP contracts don’t require the payments and insurers such as Moda operating in states with their own exchanges don’t even have QHP agreements with HHS. To arguments that the QHPs are relying on promises and statements made by HHS that the payments will be made, the DOJ says that such promises and statements don’t create a legal obligation for the United States. According to DOJ, “[a]n agency simply cannot bind itself to the payment of money through its oral or written statements— absent express contracting authority bestowed by Congress.”

The categorical rejection of the QHPs’ claims for Risk Corridors payments in the motions is curious in light of the prior CMS announcement of its interest in settling the litigation. Whether the legal positions asserted by DOJ are intended to provide leverage in settlement negotiations or indicate a change in or divergence of opinion within the government will be closely watched as the issues surrounding the Risk Corridors program continue to develop.

The motions have received considerable attention, including from the House of Representatives. The House, seeing that the new arguments had not been made in the Health Republic of Oregon case, filed an amicus brief reiterating the DOJ’s new arguments so the court can consider those arguments in that case.

The next step in these cases will include the filing of responses by the QHPs to the motions seeking to counter the DOJ’s arguments.

As we approach the end of the Obama administration we can anticipate a flurry of activity surrounding the Risk Corridors program in the courts, in settlements talks between the QHPs and the administration, and in the Congress. Stay tuned as we continue to track these matters.

The links below are to the motions and briefs:

BCBSNC – DOJ Motion to Dismiss

Moda Health Plan – DOJ Motion to Dismiss

Land of Lincoln-DOJ Motion to DIsmiss

Health Republic Insurance-House Amicus Brief

Since the first cases were filed earlier this year, we have been following nationwide litigation seeking full risk corridors payments to qualified health plans (QHPs) providing coverage on the Affordable Care Act (ACA) exchanges.

Most recently, in a bulletin dated September 9, 2016, the federal Department of Health and Human Services (HHS) – through its Centers for Medicare and Medicaid Services (CMS) – has announced that it is open to discussing resolution of those claims. The bulletin also suggests a process through litigation that could allow other QHPs to seek recovery of amounts they are owed in risk corridors payments. The bulletin could open another front in the political battle over the ACA that has ebbed and flowed since 2010.

The risk corridors program is one of three programs (collectively referred to as the 3Rs) designed to stabilize the health insurance market impacted by the implementation of the ACA. The risk corridors program is designed to limit gains and losses in the first three years of the health insurance or exchanges; the basic idea is to collect funds from insurers whose total claims fall below certain target amounts and pay insurers that have experienced higher than expected claims that exceed target amounts.

For 2014, insurers with results below the claims threshold were required to pay approximately $362 million in risk corridors charges. Insurers with higher claims were entitled to approximately $2.87 billion in risk corridors payments. Congress did not appropriate funds to make up the shortfall. Further, in budget bills Congress prohibited the use of other funds available to HHS for risk corridors payments. As a result, CMS only paid approximately 12.6% of the risk corridors payments owed for 2014, stating that it intends to make-up the shortfall with risk corridors funds collected in subsequent years and that it will work with Congress to fully fund the program.

Seeking to recover amounts they are owed, some insurers have sued HHS, arguing that the ACA requires that they be paid in full. HHS does not dispute that the ACA requires full risk corridors payments, but has argued the lawsuits are premature because the full extent of gains and losses cannot be known until the end of the three-year program.

In its September 9th bulletin, CMS announced that preliminary information suggests that risk corridors collections in 2015 will again not cover amounts owed to insurers under the risk corridors program. The agency reported that 2015 risk corridors collections will be applied to make up the 2014 shortfall, but will not fully cover those obligations or allow payment of any of the 2015 obligations at this time.

In an unusual statement, HHS acknowledged the pending risk corridors litigation and invited settlement discussions, writing:

“We know that a number of issuers have sued in federal court seeking to obtain the risk corridors amounts that have not been paid to date. As in any lawsuit, the Department of Justice is vigorously defending those claims on behalf of the United States. However, as in all cases where there is litigation risk, we are open to discussing resolution of those claims. We are willing to begin such discussions at any time.”

It is noteworthy that a different source of federal funds, the Judgment Fund, may be available to pay settlements in the risk corridors litigation. The Judgment Fund is a permanent appropriation available to pay judicially and administratively ordered monetary awards against the United States.

The bulletin has raised questions regarding the reasoning and intent behind the statements regarding settlement of the litigation. HHS may believe that it has a weak legal position and is pragmatically trying to resolve the cases in a manner as favorable to the government as possible. Other observers see this as an end-run around the federal budget process. Still others see it as a creative step to help support the viability of the insurance exchanges. Because HHS acknowledges the validity of the obligations and is charged with implementing the ACA, this last view is not an unreasonable interpretation. In any event, if the Judgment Fund can provide a source of funds for risk corridors payments, other similarly situated insurers will likely consider filing their own suits to recover amounts they are owed.

The HHS September 9, 2016, bulletin regarding Risk Corridors Payments for 2015 can be found here:

Legal challenges to controversial provisions in the Affordable Care Act (ACA) continue to work their way though the courts.  In a follow-on to the Supreme Court’s decisions in Burwell v. Hobby Lobby and Zubik v. Burwell (cases addressing how the ACA’s contraceptive coverage mandate applies to companies and religious organizations holding religious objections to certain forms of contraception) a secular pro-life group, Real Alternatives, Inc., has sued the federal government challenging the requirement that the company provide contraceptive coverage to its employees through its health plan.

Real Alternatives claims that requiring the coverage violates the Equal Protection clause of the U.S. Constitution and the federal Administrative Procedures Act (APA).  The group filed an appeal with the U.S. Court of Appeals for the Third Circuit from a federal district court decision denying the claim that the group should not have to provide contraceptive coverage.

The group argues that since it shares the same views on contraceptive coverage as religious groups exempt from the mandate, the exemption cannot be withheld from non-religious groups.  In addition, the group argues that it is irrational and unconstitutional for the government to refuse to extend the same exemption religious groups have to groups opposed to contraceptive coverage for ideological reasons.

Interestingly, the group contends that equal protection rights are denied because secular groups with ideological objections to contraceptive coverage deserve the same protections afforded to religious employers with similar objections.  The APA is violated because the requirement is “irrational and capricious” according to the group.

The group asserts that the basis for the exemption provided to religious organizations is not the religious character of the organizations, rather it is that the women employed by religious organizations most likely do not want the coverage.  That same rationale would apply to employees of Real Alternatives.  When a group and its employees do not want contraceptive coverage to be included, such coverage should not be required.

The group also claims the coverage requirement violates the Religious Freedom Restoration Act because the government has not shown that the mandate advances a compelling governmental interest.  Since the use of certain contraceptives violates the religious beliefs of Real Alternative’s employees, the mandate that the plan include such coverage imposes a substantial burden on the exercise of their religious beliefs.  The government allows an exception for religious employers and it should be able to accommodate the beliefs of the Real Alternative employees and offer the same exception to employees of secular employers with similar objections to the coverage.

The federal government has not yet filed its response to the appeal.  The government is likely to agree with the lower court judge that allowing an exemption in this case could lead down a path to giving exemptions to those with moral objections to any laws.  The judge noted in his opinion that religious organizations do get special protections that are not available to secular organizations.  He also pointed out that the mandate does not require the employees to modify their behavior in a manner contrary to their beliefs.

It is significant that a judge in a district court in D.C. came to a contrary conclusion, ruling that a secular, anti-abortion group can be exempt.  In the event decisions of the Courts of Appeals considering similar challenges are inconsistent or if the Supreme Court decides to take this issue on, we may see another ACA case at the high court.

We will continue to follow these cases as they proceed.

On August 12, 2016, the federal Centers for Medicare and Medicaid Services (CMS) issued both a report delivering a message of optimism regarding the healthcare Marketplaces (or exchanges) and posted a blog written by the exchange CEO in which more regulatory flexibility was promised.  All this against the backdrop of continuing, expanding, nationwide litigation over the future of the 3Rs program, controversy over rate filings and insurers deciding whether or not they will offer coverage on the exchanges will make 2017 a critical and interesting year for the ACA.

CMS Marketplace Report 

CMS released a report presenting three positive findings regarding the evolution of costs in the Affordable Care Act (ACA) individual market from 2014 to 2015.

  1. Per-enrollee costs in the ACA individual market were essentially unchanged between 2014 and 2015.
  2. Available evidence indicates that the slow ACA individual market cost growth resulted at least in part from a broader, healthier risk pool.
  3. Nearly all states saw continued growth in Marketplace enrollment in 2016, suggesting continued risk pool improvement.

Modifications to Risk Adjustment Program

In a companion post to the CMS blog, Kevin Counihan (CEO of the federal Health Insurance Marketplace) announced future rulemaking to modify the ACA’ s permanent Risk Adjustment program.   Mr. Counihan stated that CMS will “propose modifying the risk adjustment program to absorb some of the cost for claims above a certain threshold (e.g., $2 million), funded by a small payment from all issuers.”

The CMS cost findings from 2014 and 2015 appear positive.  But, in any case, questions remain as to whether those findings are indicative of trends for 2017 and beyond.  As insurers became more familiar with their risk pools, individual premiums increased by (on average) about 5% in 2016.  And, with the temporary reinsurance element of the 3Rs program coming to an end in 2017, experts and actuaries expect individual premiums to increase (on average) by about another 10% in 2017.  Some insurers are asking for even larger increases pointing to the high cost of covering insureds with expensive to treat conditions.  Other factors impacting rates include churn from insureds changing carriers or even dropping coverage after receiving expensive healthcare.  Even a relatively small number of individuals with serious health conditions can have a significant impact on an insurer’s cost of coverage.

In response, CMS promises a future modification of the permanent Risk Adjustment element of the 3Rs program “to better adjust for the highest-cost enrollees and their actuarial risk, which would achieve some of the same risk-sharing benefits as the reinsurance program.”

Mr. Counihan also states that CMS is “exploring options” for other rulemaking aspects regarding the Risk Adjustment program, which may be a response to the recent lawsuit filed against CMS by Evergreen Health Cooperative, a Maryland Consumer Operated and Oriented Plan (CO-OP).  Risk Adjustment is a redistributive zero-sum game, with the federal government administering payments from plans with lower-cost members to plans with higher-cost members.  However, as Evergreen and others have argued, the Risk Adjustment formula favors big, established plans with more claims experience by not accounting for the effects of certain claims data and not including prescription drug data.  As a result, CMS may be exploring ways to both stabilize premiums for individuals and level the regulatory playing field for different types of insurers.

Mr. Counihan closes his post by stating that the CMS “door is always open to new ideas that help spread the risk of providing coverage for people with significant health care needs.”  Such ideas are certainly needed as nationwide 3Rs litigation continues, premiums increase and insurers reconsider participation on the exchanges.

The CMS report can be found here:

The companion blog post from Mr. Counihan can be found here:

President Obama recently published an article in the Journal of the American Medical Association, JAMA, discussing his signature legislative achievement, the Affordable Care Act (ACA). The President considers ACA’s comprehensive reforms to be the most important healthcare legislation enacted in the United States since the creation of Medicare and Medicaid in 1965.

As he prepares to leave office, the President reviews the factors influencing his decision to pursue health reform, summarizes data on the law’s impacts, recommends further action to improve the healthcare system, and discusses public policy lessons learned.

The President credits the ACA as having helped to improve the US healthcare system. He points out that the uninsured rate has declined by 43%, from 16.0% in 2010 to 9.1% in 2015. He also credits the law for improved access to care, providing financial security through reduction in debts sent to collection, and better population health. The President also points to benefits from trends in provider compensation, noting that an estimated 30% of traditional Medicare payments now flow through alternative payment models.

Noting this progress, the President suggests ways that remain to further improve the healthcare system. He recommends continuing to implement the programs and policies in the law, such as the health insurance marketplaces, delivery system reform, and providing and increasing federal financial assistance for marketplace enrollees.

While prescription drug cost reform was not a focus of the ACA, the President believes that cost increases must be addressed. He recommends that Congress require more transparency around manufacturers’ actual production and development costs, increase rebates manufacturers are required to pay for drugs prescribed to certain Medicare and Medicaid beneficiaries, and give the federal government the authority to negotiate prices for certain high-priced drugs.

Significantly, President Obama also suggests introducing a public plan option in areas that lack competition in the individual insurance market. The public option was considered but not included in the ACA in favor of Consumer Operated and Oriented Plans, or CO-OPs. As we have addressed in this Blog, the CO-OP program has been unsuccessful in many of the states where CO-OPs were established. However, the President believes that costs could be better controlled by public plans operating alongside private insurers in areas of the country where competition is limited.

While recognizing that the law can be improved and supporting efforts to do so, President Obama notes much time has been absorbed by the more than 60 attempts to repeal parts of all of the ACA. Hyperpartisanship and the financial power of special interests are viewed as obstacles to progress. However, he concludes with an optimistic assessment that the ACA demonstrates that positive change addressing complex challenges is achievable.

President Obama’s article can be read in its entirety at the following link:


To update our recent post, “Exchange Players File ACA Lawsuits Against CMS,” two new suits were filed by Qualified Health Plan (QHP) issuers selling coverage on the Affordable Care Act (ACA) exchanges. As described in our earlier post, for 2014, QHP issuers paid a total of $362 million in risk corridors charges to the government and asked for payments from the program of $2.87 billion. As a result, the Department of Health and Human Services (HHS) only paid 12.6 percent of the amounts owed. Regarding the remaining two years of the three-year risk corridors program, HHS told issuers that it would not know the total loss or gain for the program until the fall of 2017, and that in the event of a shortfall HHS will explore other sources of funding for risk corridors payments, subject to the availability of appropriations.

The two new lawsuits are described below:

1. Blue Cross Blue Shield of North Carolina

In one case, Blue Cross Blue Shield of North Carolina (BCBSNC) filed suit in the U.S. Court of Federal Claims seeking payments under the risk corridors program, one of the three premium rate stabilization programs, known as the 3Rs, created by the ACA.

BCBSNC claims that the federal government’s failure to make full risk corridors payments breaches the QHP contracts between BCBSNC and the federal government and is also a “taking” in violation of the U.S. Constitution. BCBSNC is seeking in excess of $147 million, less the partial payments made by the government, representing the amount of risk corridor payments owed to BCBSNC for 2014. The company is also asking the court to order the government to make full risk corridor payments for 2015 and 2016. The case was brought under the Tucker Act, which provides a cause of action for claims for damages over $10,000 against the United States.

BCBSNC asserts that the promise of financial risk sharing through the risk corridors program was a significant factor in its decision to become a QHP and to participate in the ACA exchanges. The company notes that it had contractually committed to participate in the exchanges when the government announced that it would implement the risk corridors program in a budget neutral, rather than fully funded, manner. The company argues that there are no provisions in the ACA limiting the government’s obligation to make full risk corridor payments owed to QHPs. BCBSNC also refers to statements in which the government, through HHS, acknowledged its obligation to make risk corridor payments. While Congress specifically targeted risk corridors payment obligations in appropriations bills that prohibited the use of federal money to fund risk corridors, the insurer claims that the failure to appropriate funds does not defeat the obligation that is still in the law to make risk corridor payments in full.

2. Moda Health Plan, Inc.

The second case was filed by Moda Health Plan, Inc. (Moda), an insurer operating in the Pacific Northwest and providing coverage in Alaska, Oregon, and Washington. Moda also filed its suit in the U.S. Court of Federal Claims and makes similar allegations. Moda is asking for risk corridors payment of approximately $89 million for its 2014 QHPs and $101 million for its 2015 QHPs. Moda also claims that the government breached its statutory and contractual obligation to make full risk corridors payments by paying out only $11 million of the amount that Moda is owed for 2014 and not paying any of its risk corridors obligations for 2015.

Moda claims that rates for QHP products were set based on the law’s provisions. Moda also points to other policy changes, such as HHS’s extension of its transitional policy, allowing individuals to stay on certain plans without ACA required benefits, as keeping healthier individuals on existing plans and making the QHP risk pool more expensive to cover.

Moda asserts that the failure to pay the full amount of the risk corridors payments has limited Moda’s ability to sell ACA plans in Alaska and Oregon. Regulators in those states will only allow Moda Health to continue to operate if it raises private capital to replace the loss the of risk corridors payments due in 2014 and 2015. Moda announced it has raised sufficient capital to continue to operate in Oregon for 2016 and 2017, but it will not be offering individual coverage in Alaska for 2017, where it was one of only two insurers offering coverage.

We will continue to update our posts following developments in these cases and additional lawsuits that may be filed by other insurers.