Recently, the attorneys general of eleven states and the District of Columbia filed suit to challenge the Department of Labor’s (DOL) new association health plan (AHP) regulations (the “AG Litigation”). Although it is unclear at this time whether the AG Litigation will be successful in invalidating the regulations, it creates a potential impediment for a key aspect of the Trump administration’s effort to change the health insurance marketplace.

The AHP Regulations

An AHP is a group health plan that is sponsored by an association of employers and is treated as a single employee benefit plan for regulatory purposes. According to the DOL, AHPs offer small employers (and now self-employed individuals) the following key advantages over sponsoring a group health plan at the individual employer level (or procuring individual coverage):

  • Because AHPs can negotiate with insurers or healthcare providers on behalf of the entire group (instead of each employer negotiating individually), the AHP will theoretically obtain lower premium rates; and
  • Because AHPs typically have enough participants to qualify as a “large group” plan, an AHP is not subject to the more stringent Affordable Care Act (ACA) requirements imposed on plans in the “small group” and individual markets.

Although the concept of AHPs predates the DOL’s new regulations, associations had difficulty forming AHPs under prior law. Before the new regulations, an association could form an AHP only if it satisfied stringent “commonality of interest” standards. Those standards require that the association be formed for a purpose unrelated to the provision of benefits, and that it have a common economic or representational interest in a narrow sense. As a practical matter, few employers could satisfy these requirements, and AHPs have not been commonplace.


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Last week, the Departments of Treasury, Labor, and Health and Human Services (the “Departments”) issued final regulations to redefine the meaning of “short-term, limited duration insurance” (“short-term insurance”). The controversial regulations are likely to expand the use of this limited form of health insurance among consumers who do not receive coverage through their employers.

Background

The Affordable Care Act (“ACA”) imposes strict requirements on most individual health insurance coverage. Short-term insurance is exempt from most of those requirements. Significantly, short-term insurance (unlike other forms of individual insurance) is: (1) allowed to exclude or limit coverage for preexisting conditions; (2) not required to provide coverage for essential health benefits (such as coverage for emergency care, inpatient care, prescription drugs, and mental health services); and (3) permitted to impose annual and lifetime maximums to limit the amount that the insurance company pays.


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The new Tax Bill (H.R. 1), which President Trump is expected to sign soon, will have an impact on healthcare in the U.S.

First, the Tax Bill will permit a taxpayer to deduct medical expenses that exceed 7.5% of the taxpayer’s adjusted gross income (which has been reduced from the previously 10% threshold). This will

Last week, Senators Lindsey Graham of South Carolina and Bill Cassidy of Louisiana (with their co-sponsors, Senators Dean Heller (R-NV) and Ron Johnson (R-WI)) released the “Graham-Cassidy-Heller-Johnson Amendment” (“Graham-Cassidy bill”), which, if passed, would have repealed major sections of the Patient Protection and Affordable Care Act (ACA).

Specifically, the bill would have repealed the ACA’s individual and employer mandates, ended the Medicaid expansion in 2020, replaced the ACA’s subsidy program with state block grants (which would have allowed states to decide how their healthcare system would operate), weakened restrictions against pre-existing condition protections, and defunded Planned Parenthood.


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Senate Republicans have released several bills in recent weeks in support of their goal of repealing and replacing the Affordable Care Act (ACA). This morning, that effort appears to have failed.

On Tuesday, the Senate narrowly approved a motion to proceed, allowing the chamber to begin consideration of measures to achieve that goal. Republican Senators Susan Collins of Maine and Lisa Murkowski of Alaska voted with the Democrats against the motion, but Vice President Mike Pence broke the resulting 50-50 tie. That vote allowed debate to move forward on a range of healthcare legislative options.

The next step for proponents of the repeal effort was to agree on what, if anything, would replace the ACA. Three options were considered, and all were voted down:


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Senate Republicans have released several bills in recent weeks in support of their goal of repealing and replacing the Affordable Care Act (“ACA”). This afternoon, the Senate narrowly approved a procedural step that allows the chamber to begin consideration of measures to achieve that goal. Republican Senators Susan Collins of Maine and Lisa Murkowski of

On Thursday, June 22, 2017, Senate Republican leaders released their legislative proposal to amend the Affordable Care Act (ACA). A revised version of the bill was released on June 26. The Senate’s take on healthcare legislation, titled the Better Care Reconciliation Act of 2017 (BCRA), comes after the House passed the American Health Care Act (AHCA) by a narrow margin in early May. The Senate bill is structurally similar to the House version, but it departs from the AHCA in important ways. The Senate bill makes deeper cuts to Medicaid and establishes a different set of subsidies to help individuals purchase insurance. The BCRA is labeled a “discussion draft,” but Senate leaders have set an ambitious goal of holding a vote on the measure before the July 4th holiday.

Key provisions of the BCRA are outlined below.


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Repealing and replacing the Affordable Care Act (ACA) has long been a priority of congressional Republicans, yet recent events in Washington suggest that accomplishing this goal will be harder than originally anticipated. In early May, the House of Representatives narrowly passed the American Health Care Act of 2017 (AHCA). The AHCA rolled back a host of ACA provisions, including the individual and employer mandates and numerous taxes funding the expansion of healthcare coverage. The Congressional Budget Office (CBO) projected that enactment of the bill would result in cutting over $830 billion from Medicaid and 23 million people losing coverage by 2026. Rather than embrace the AHCA, Senate Republicans crafted their own bill, the Better Care Reconciliation Act of 2017 (BCRA). Similarly, it would effectively eliminate the mandates and numerous taxes associated with the ACA. Notably, however, it differs in its approach to Medicaid. The CBO projected that enactment of the BCRA would remove $772 billion from Medicaid and would increase the number of uninsured Americans by 22 million by 2026. The Senate scheduled a vote on the BCRA prior to Congress’s July 4 recess, but it was ultimately cancelled by Republican leadership because of a lack of votes.


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On Thursday, May 4, 2017, the U.S. House of Representatives narrowly passed the American Health Care Act (AHCA) by a vote of 217 to 213. The AHCA as passed includes recent amendments offered by Representatives MacArthur and Upton. The key provisions that impact every individual, healthcare provider, healthcare insurance carrier, and employer sponsoring a group health plan are explained below. 
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One of President Trump’s first official actions was to sign an executive order affirming the administration’s intent to seek repeal of the Affordable Care Act (ACA) and directing federal agencies to minimize the economic and regulatory burdens of the ACA to the fullest extent permitted by law. While Congress and the White House continue to work out the specifics of a new healthcare policy, the administration has moved its repeal effort forward in important ways.
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