As a quick refresher, the fees will be earmarked to capitalize reinsurance facilities in each state that serve as financial backstops for health insurance companies which offer individual coverage plans through public health insurance exchanges slated to come on-line in 2014. Health insurance companies will also be subject to this fee.
What has caused some confusion is that the statute and a pre-curser rule finalized earlier this year references that third party administrators on behalf of self-insured plans will be responsible for paying the fee. In private meetings over the summer, regulators clarified that it was not the intent that TPAs be financially liable for these fee, but rather they will be expected to assist in the collection of these fees from their clients. Those details, along with the specific fee amounts, are still under wraps.
This blog has learned that an increasing number of large self-insured employers have been complaining directly to senior White House officials that the fee is fundamentally unfair because it helps to support the profitability health insurance companies, with no direct benefit for employers. Responses have ranged from “we hear you but there is nothing we can do” to “there should be no complaining now because you (the employer community) signed off on this ACA provision during the legislative process.”
The former response is expected, but the latter response deserves some fact checking.
According to a source directly involved with drafting this section of the ACA, there is an interesting back story that is not widely known. When legislative language was being developed, Democratic drafters did not understand the difference between independent TPAs with insurance company owned ASOs and did not understand that ASOs are typically separate business entities from their insurance company parents.
The reason why this is important is because ACA legislative drafters recognized that it did not make sense to impose fees on self-insured plans to subsidize insurance companies but they figured by referencing TPAs they would exclusively tap the fully-insured marketplace on the assumption that all TPAs were owned by insurance companies.
Only later in the legislative drafting process did they come to understand that many self-insured employers had no insurance company connection. But by that time there was no turning back and there was no alternative to collecting the necessary revenue – all self-insured employers were going to have to pay. No wonder that that the regulators have been slow with details on how this is all going to work.
So this brings back to the timing of when these details will be published. Clearly if the Administration thought that employer community was going to be happy with the new rules, they would be released prior to Election Day. But the best intel suggests that the proposed are done and are sitting right now at the Office of Management & Budget (OMB) awaiting a green light for release, likely shortly after election day.
The one positive detail is that the rules will be coming out in proposed form, so there will be an opportunity for formal stakeholder input -- just another thing to look forward to as we enter the holiday season.