Politico’s Sarah Kliff and Jennifer Haberkorn are reporting that after six months of deliberations, the National Association of Insurance Commissioners (NAIC) have approved model regulations governing the all-important medical-loss ratio provisions of the Affordable Care Act. These regulations require insurers that don’t spend 80% to 85% of their premium dollars on health care to send refunds to their customers. The percentages are calculated from a ratio of “health expenditures” to other expenses and since reform became law, insurers have pressured the NAIC to include certain administrative expenses as medical costs, exclude all federal taxes from their revenue (the denominator in the MLR ratio), and allow insurers to aggregate the ratio across plans and markets — all in an effort to make it easier for the industry to meet the MLR requirements without actually spending more on health care.
The NAIC had already issued draft regulations which ignored many of these arguments, but in the days and moments leading up to the final vote, “Commissioners offered four ultimately unsuccessful, amendments: to remove brokers fees from the calculation and to aggregate spending calculations nationally rather than at the state level and two amendments related to giving insurers credits to help them reach the spending levels.” Despite the least minute activity and intense lobbying, “the proposed regulation moved forward unchanged”:
- TAXES: NAIC rejected the Congressional Committee chair’s statement that they only meant to allow issuers to deduct those taxes that are specifically related to the Affordable Care Act. It ruled that issuers can exclude all federal taxes but those on investment income.
- DEFINING HEALTH COSTS: NAIC rejected insurers’ suggestion that services like anti-fraud and “utilization review” be included in the definition of “medical expenses,” included other services that have not been traditionally classified as “medical,” and required issuers to substantiate why certain services improve care quality.
- AGGREGATION: Insures wanted the NAIC to calculate their MLRs across different units and markets. This would have allowed insures to group their plans together to mask the low MLRs of some of their plans. The draft guidelines would require issuers to break them down and account for the MLRs separately at every business unit in every state, preventing them from obscuring some low MLR plans.
- BROKER FEES: “The commissioners did approve a motion to appoint a subgroup to work with HHS on how to deal with issues related to broker and agent compensation. This compensation is currently categorized as an administrative expense; agent trade groups have pushed for their fees to be taken out of the calculation altogether. Brokers are nervous that their role will be greatly diminished if their fees are categorized as administrative spending.”
- CREDIBILITY ADJUSTMENTS: These address the normal statistical fluctuations that affect smaller and newer plans. In order to adjust for this, the NAIC considered introducing credibility adjustments based upon the size of an insurer’s business. The NAIC rejected moving from a 50% to a 80% confidence level on credibility adjustments, which would have given insurers a big break and made it easier for companies to meet the MLR.
The model regulation will now be delivered to Health and Human Services (HHS) for certification by the Secretary and consumer advocates I spoke too are fairly happy with the rule. “We are very proud of the NAIC this morning. Congress asked them to do a job and they did it with openness, integrity, and dignity,” W & L Law School Professor Timothy Jost emailed me in a statement. “Although we did not get everything we wanted in the MLR rule as consumers, we think the rule is fair, workable, and faithful to the law.” HHS Secretary Kathleen Sebelius has also issued a positive statement. “These recommendations are reasonable, achievable for insurers and will help to ensure insurance premiums are, for the most part, supporting health benefits for consumers,” she said. “Not only do they ensure consumers receive better value for their health care dollar, they recognize special circumstances in different markets to preserve market stability and employee coverage as we transition to the new marketplace in 2014. ”
However, HHS has already indicated that it would likely issue wavers to mini-med plans and other insurance plans that would be unable to meet the new requirements because of the way they are structured.