Volume 13, Issue 19   |   December 28, 2009

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Senate passes Patient Protection and Affordable Care Act

On the morning of December 24th, the Senate passed their version of a sweeping health care reform bill. The bill, passed with 58 Democratic and two Independent votes over unanimous Republican opposition, would materially alter the health insurance landscape in America.

With bills now passed in both the House and Senate, the next step is to reconcile key differences into a single bill that will need to pass both houses before being delivered to the White House to be signed into law. Congress will reconvene in mid-January to take up reconciling the two bills, and final passage is expected in late January or early February 2010.

With the achievement of a 60-vote compromise in the Senate, the enactment of health care reform legislation looks more likely than ever. Employers should educate themselves on the potential changes, although most will wait to adopt new strategies or modify existing approaches to health care until the upcoming final round of negotiations and amendments are completed.

This article provides highlights of the Senate bill and a timeline of the proposed reforms. 

This issue of Insight is based on a preliminary assessment of the proposed legislation. Please refer to the
text of the bill as the definitive source.


 


Summary of Senate Bill:

Individual and Small Market Reforms
 
All individuals are required to have insurance or pay a fine (the greater of $750 per person / $2,250 per family or 2% of annual income). The fine increases by a cost of living adjustment and is phased in through 2016. Exemptions include coverage gaps of less than three months or if the lowest cost available plan costs more than 8% of income.
Creates state-based Health Insurance Exchanges where individuals can shop for standardized insurance policies. Options will include two private plans managed by the federal Office of Personnel Management, one of which will be non-profit. No public plan option.



Key Differences Between House and Senate Bills

While largely similar, there remain key differences between the House and Senate bills, including:

Public Option: included in the House bill but not the Senate version
Degree of Restriction on Abortion Coverage: House bill includes stringent restrictions on abortion coverage while the Senate has proposed less stringent restrictions and has several strong supports of abortion rights.
Funding of Reform: House bill includes a tax on high income earners while the Senate version would tax high-cost health plans

The Senate bill is expected to take precedence in compromise legislation due to the fragility of the Democratic consensus and the 60 vote requirement to overcome Republican filibuster opposition.

See below for a legislative timeline comparing the proposed House and Senate reforms.

Premium credits/individual subsidies to help individuals up to 400% of Federal Poverty Level (FPL) ($73k/year for family in 2009) buy insurance. Employees with access to an employer plan are not eligible for subsidies unless the employer plan does not meet minimum benefit standards and costs more than 9.8% of income.
Expands Medicaid eligibility threshold to 133% of FPL.
Tax credits to help small employers (25 employees or less) provide coverage.
Funding to establish new state-based non-profit health insurance companies.
Establishes high-risk pool to cover individuals with pre-existing medical conditions until exchanges are effective (2014).

 

Insurance Mandates
 

Prohibits applying pre-existing condition limits or underwriting individual and Exchange-based insurance policies based on health.
Individual premium rates may vary based on age (3:1 limit), geographical location, family size, and tobacco use (1.5:1) only.
Standardizes health insurance benefit levels (“Bronze”, “Silver”, “Gold”, “Platinum”). “Bronze” plan covers 60% of health costs up to HSA out of pocket maximum limits; “Silver” covers 70%; “Gold” 80%; and “Platinum” 90%. Preventive care is covered 100%. Existing plans do not have to meet requirements.
Allows catastrophic plan within Exchanges for individuals up to age 30 or otherwise exempt from mandates.
Sets minimum standards for health insurance benefit levels (“essential benefits package”). Must cover minimum of 60% of health costs up to HSA out of pocket maximums. Secretary of HHS has authority to set specific minimum benefit levels.
Prohibits annual or lifetime limits on coverage.
Mandates 85% minimum loss ratios for insurers (80% for individual market). Requires states review premium increases and can exclude plans from exchanges for unjustified increases.
Increases dependent eligibility age to 26.
Prohibits insurers from retroactively cancelling policies (rescission).
Prohibits reimbursement for over the counter drugs under tax-advantaged accounts (FSA, HSA, HRA).
Increases excise tax for non-qualified reimbursements from Health Savings Accounts from 10% to 20%.
Limits FSA contributions to $2,500 annually (increased annually according to CPI).
   

Large Employer Impacts (Generally 50+ Employees)

Charges 40% excise tax on the value of health insurance (including dental, vision, contributions to health accounts, and other health coverage) exceeding $8,500 individual / $23,000 family. Thresholds are indexed to CPI-U + 1%. Tax is applied to insurers but is expected to impact employers through higher premiums.
Employers that do not offer coverage and have employees who receive federal subsidies pay a penalty ($750 per full-time employee).
Employers who do offer coverage and have employees who receive federal subsidies pay a reduced penalty (lesser of $3,000 for each employee receiving subsidies or $750 per full-time employee).
Employers with more than 200 employees must auto-enroll employees in their lowest cost plan (employee opt-out permitted).
Employer benefits must meet minimum benefit levels (“essential benefits”) defined by Secretary of HHS.
Prohibits employers from discriminating in favor of highly compensated individuals with regard to eligibility and benefits.
Creates temporary reinsurance program for early retirees (over age 55 but not eligible for Medicare) by reimbursing insurers or employers for 80% of claims between $15,000 and $90,000. Program ends 1/1/2014.
Employers with a waiting period for coverage of longer than 60 days pay a fine of $600 per employee.

Medicare Changes

Payment cuts and "efficiency improvements" relating to Medicare Advantage plans, prescription drugs, hospital readmissions, general hospital payments, and other items.
Allows for standardized patent protection and generic equivalents for biologic drugs.
Increase payments to primary care providers.
Reduces cost sharing provisions for Part D (prescription drug coverage).
Reduces premium subsidies for Part D participants with incomes above $85,000 individual / $170,000 couple.

Prevention, Wellness and Public Health

Establishes federal council to coordinate prevention and public health efforts. Council will develop a national strategy to improve the nation’s health.
Eliminates cost-sharing for preventive care for Medicare and Medicaid.
Provides Medicare beneficiaries with access to health risk assessments, with incentives for completion.
Conducts national survey of employer-sponsored wellness programs.
Permits rewards of up to 30% of cost of coverage for employee participation in wellness programs.
Requires restaurant chains and vending machines to display nutritional content.

Long Term Care

Establishes national voluntary program paid through payroll deductions.
Provides benefit of $50/day for non-medical custodial services.

Other Changes

Insurance coverage receiving full or partial federal subsidy is prohibited from covering abortion (in most circumstances).
No Federal provisions for tort reform.
Increases the threshold for personal deduction for medical expenses from 7.5% to 10% of income.
Increases Medicare payroll tax from 1.45% to 2.35% for earnings over $200,000 individual / $250,000 household.
Taxes and fees levied for medical device makers, hospitals, and other health care providers.
10% tax on indoor tanning services.
Limits deductibility of executive compensation to $500,000 for health insurance companies.
Funds pilot programs relating to comparative effectiveness research, medical malpractice reform, Medicare payment structure, and other programs designed to improve quality and efficiency or reduce costs.
Support for increased training of general medical practitioners to expand supply of primary care doctors and nurses.
Improved support for community health centers.

Financing

The bill is expected to cost $871 billion over the first 10 years (2010-2019), offset through revenue provisions including:
  • $438 billion in Medicare cuts
  • $149 billion from excise tax on high-cost health plans
  • $264 billion in fees on medical device manufacturers and insurers and increase in Part A contributions for high-income individuals.
The bill does not include the ~$250B required to prevent a 20%+ cut in Medicare physician reimbursements currently scheduled for 2010.

Legislative Timeline

This implementation table is based on a preliminary assessment of the proposed legislation and should not be relied upon as a definitive schedule.
 

  2010 2011 2013 2014
Senate
Legislation
Tax credits for Small Business (phased in through 2014)

Taxes on:
- Drug companies
- Medical devices
- Health insurance
  companies
- I
ndoor tanning
Tax change: FSA limits

Insurer loss ratio limits

CLASS Act Long Term Care effective
Increase Medicare payroll tax

Tax on high-cost plans
Individual Mandate (phased in through 2016)

Employer coverage requirements (offer coverage, waiting periods)

Individual Coverage Expansion (Medicaid, Exchanges)

Essential Benefits Plan defined
House
Legislation
Insurer loss ratio limits

CLASS Act Long Term Care effective
Tax on high-income individuals Individual and Employer Mandates

Essential Benefits Plan defined

Individual Coverage Expansion (Medicaid, Exchanges)

Tax Credits for Small Business

Tax change: FSA limits

Tax on medical devices
 
 
Legislative
Consensus
Temporary high-risk pool (through 2014 / Exchanges are effective)

Gov't oversight of premium increases

Dependent age expansion

Limit annual & lifetime benefit caps

Prohibit rescission of individual policies

Relax pre-existing condition limits

Preventive care enhancements

Temporary reinsurance program for early retirees
 
Tax changes:
- OTC drugs
- HSA excise taxes
 
   
         
    Questions or Comments?
  Please submit your questions or comments regarding this issue
  to info@arlengroup.com or call (415) 733-7000.
 

 


 

 

 

 

The Insight newsletter is not intended to provide legal advice but perspective on recent regulatory issues, trends and standards affecting employee benefits. Please consult your own legal counsel for further information on the topics discussed in this issue of Insight.

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