Skip to main content
Sister Publication Links
  • ESG: THE IMPLEMENTATION IMPERATIVE
Subscribe
  • Sign Up Free
  • Login
  • Subscribe
  • News
    • Current News
    • Providers
    • Insurance
    • Digital Health
    • Government
    • Finance
    • Technology
    • Safety & Quality
    • Transformation
    • People
    • Regional News
    • Digital Edition (Web Version)
    • Patients
    • Operations
    • Care Delivery
    • Payment
    • Midwest
    • Northeast
    • South
    • West
  • Unwell in America
  • Opinion
    • Bold Moves
    • Breaking Bias
    • Commentaries
    • Letters
    • Vital Signs Blog
    • From the Editor
  • Events & Awards
    • Awards
    • Conferences
    • Galas
    • Virtual Briefings
    • Webinars
    • Nominate/Eligibility
    • 100 Most Influential People
    • 50 Most Influential Clinical Executives
    • Best Places to Work in Healthcare
    • Excellence in Governance
    • Health Care Hall of Fame
    • Healthcare Marketing Impact Awards
    • Top 25 Emerging Leaders
    • Top 25 Innovators
    • Diversity in Healthcare
      • - Luminaries
      • - Top 25 Diversity Leaders
      • - Leaders to Watch
    • Women in Healthcare
      • - Luminaries
      • - Top 25 Women Leaders
      • - Women to Watch
    • Digital Health Transformation Summit
    • ESG: The Implementation Imperative Summit
    • Leadership Symposium
    • Social Determinants of Health Symposium
    • Women Leaders in Healthcare Conference
    • Best Places to Work Awards Gala
    • Health Care Hall of Fame Gala
    • Top 25 Diversity Leaders Gala
    • Top 25 Women Leaders Gala
    • - Hospital of the Future
    • - Value Based Care
    • - Hospital at Home
    • - Workplace of the Future
    • - Digital Health
    • - Future of Staffing
    • - Hospital of the Future (Fall)
  • Multimedia
    • Podcast - Beyond the Byline
    • Sponsored Podcast - Healthcare Insider
    • Video Series - The Check Up
    • Sponsored Video Series - One on One
  • Data Center
    • Data Center Home
    • Hospital Financials
    • Staffing & Compensation
    • Quality & Safety
    • Mergers & Acquisitions
    • Data Archive
    • Resource Guide: By the Numbers
    • Surveys
    • Data Points
  • MORE+
    • Contact Us
    • Advertise
    • Media Kit
    • Newsletters
    • Jobs
    • People on the Move
    • Reprints & Licensing
MENU
Breadcrumb
  1. Home
  2. Government
February 19, 2019 12:00 AM

Silver-loading complicates CSR lawsuits

Susannah Luthi
  • Tweet
  • Share
  • Share
  • Email
  • More
    Reprints Print

    Insurers are so far undefeated in a string of lawsuits to recover billions in unpaid cost-sharing reduction payments cut off by President Donald Trump in 2017, following two federal court decisions late last week.

    But with a winding legal path ahead and a policy mess no matter the outcome, it's unclear whether any involved party—the government, the insurers or the people who pay full freight on the exchanges—will win.

    At immediate issue is whether these accumulating insurer victories will tamp down on silver-loading, a practice widespread across nearly all states since Trump halted cost-sharing reduction payments, or CSRs. Silver-loading, what happens when exchange insurers pile the costs into the silver benchmark plans and pass them on to unsubsidized silver plan enrollees and the federal government, has proven extremely expensive for the government.

    Sabrina Corlette of Georgetown University's Center on Health Insurance Reforms said this question is mostly a function of timing. Will the courts or the federal government finally resolve or settle the multiple lawsuits around CSRs before insurers have to finalize their rates for 2020?

    Yet she also noted that while plans mostly assume the status quo of the law when they set rates, the potential financial and logistical implications are so significant they can't be overlooked when it comes to planning.

    "State insurance departments will have to think about this and ask: 'What do we do? Do we allow silver-loading for 2020?' " Corlette said. "There's all kinds of questions you'd have to ask if you do silver-loading."

    Katie Keith, an expert on the Affordable Care Act, questioned in a Health Affairs blog post whether the ruling will lead to an HHS crackdown on silver-loading. "These rulings could give HHS an additional reason to prohibit the practice of silver loading by suggesting that insurers could unfairly silver load and recover for unpaid CSRs at the same time," Keith wrote.

    Last month, HHS in a proposed rule suggested it could end the practice for 2021 and asked states and other interested parties to weigh in.

    A spokesperson for the National Association of Insurance Commissioners did not respond by deadline to a query from Modern Healthcare on how state insurance regulators view the litigation in light of upcoming rate filings.

    But the Rhode Island and Colorado insurance departments told Modern Healthcare that they were planning on moving ahead with silver-loading for 2020.

    Both departments also submitted their public comments on the proposed payment rule on Tuesday. Colorado has asked HHS not to restrict silver-loading at all, according to Assistant Commissioner Vincent Plymell.

    Meanwhile, no one knows when states, federal officials and insurers will have to hammer out the logistics of a resolution.

    The Justice Department declined to comment on whether it would appeal last week's decisions, but the government has already appealed the first court ruling from September on a parallel lawsuit.

    Until then, state insurance commissioners and plans aren't likely to get certainty or guidance from Congress, where last year lawmakers couldn't agree to a deal to appropriate the CSRs. Their failure was technically due to a dispute about attaching language known as the Hyde Amendment, to block any federal funds from paying for abortions.

    That stalemate is still in place. GOP and Democratic aides confirmed it's unlikely lawmakers will try again on CSRs any time soon.

    "The only way Congress could pass an appropriation for CSRs is if Democrats reverse course and agree to apply the Hyde Amendment which applies to all other healthcare appropriations," a Republican aide from the Senate health committee said.

    But as states forge ahead with silver-loading, policy experts and legal analysts are trying to grapple with how a government repayment of CSRs would technically work, given silver-loading and the ACA's cap on insurer profits known as the medical loss ratio, or MLR.

    "Because of silver loading, do repaid CSRs for 2018 get wrapped up in MLR rebates for consumers?" Keith said. "I think there's some practical considerations that I'm not sure we understand just yet regarding whether this would be a windfall for insurers."

    Michael Adelberg, a former CMS official and consultant at the law firm Faegre Baker Daniels, agreed, and added that if the courts keep siding with insurers they will have to settle on the scope of their decision: do insurers get payments only for 2017, before they staved off losses through silver-loading, or for 2018 and thereafter as well? How would it look state-by-state?

    "Silver-loading is a nice convenient term, but different states gave different instructions to the insurers," Adelberg said. "There are subtleties there that would have to get figured out."

    Nicholas Bagley, ACA expert and law professor at the University of Michigan, outlined in a post for the Incidental Economist just how complicated the case can get as it continues through the courts.

    Ultimately, he concluded, the potential outcomes are so messy that the problem urges congressional action.

    "Congress could and should stop the bleeding: there's no reason at all to funnel money to insurers that have adjusted to a world without cost-sharing payments," Bagley wrote. "But there's a big gap between what Congress should do—and what it will do."

    Letter
    to the
    Editor

    Send us a letter

    Have an opinion about this story? Click here to submit a Letter to the Editor, and we may publish it in print.

    Recommended for You
    Abortion clinic
    Idaho hospital halts obstetrical care as abortion laws become stricter
    mh_20160711p29_bills_i.jpg
    State, local governments pay off medical debt relief with COVID funds
    Most Popular
    1
    More healthcare organizations at risk of credit default, Moody's says
    2
    Centene fills out senior executive team with new president, COO
    3
    SCAN, CareOregon plan to merge into the HealthRight Group
    4
    Blue Cross Blue Shield of Michigan unveils big push that lets physicians take on risk, reap rewards
    5
    Bright Health weighs reverse stock split as delisting looms
    Sponsored Content
    Modern Healthcare Alert: Sign up for this breaking news email to be kept in the loop as urgent healthcare business news unfolds.
    Get Newsletters

    Sign up for enewsletters and alerts to receive breaking news and in-depth coverage of healthcare events and trends, as they happen, right to your inbox.

    Subscribe Today
    MH Magazine Cover

    MH magazine offers content that sheds light on healthcare leaders’ complex choices and touch points—from strategy, governance, leadership development and finance to operations, clinical care, and marketing.

    Subscribe
    Connect with Us
    • LinkedIn
    • Twitter
    • Facebook
    • RSS

    Our Mission

    Modern Healthcare empowers industry leaders to succeed by providing unbiased reporting of the news, insights, analysis and data.

    Contact Us

    (877) 812-1581

    Email us

     

    Resources
    • Contact Us
    • Advertise with Us
    • Ad Choices Ad Choices
    • Sitemap
    Editorial Dept
    • Submission Guidelines
    • Code of Ethics
    • Awards
    • About Us
    Legal
    • Terms and Conditions
    • Privacy Policy
    • Privacy Request
    Modern Healthcare
    Copyright © 1996-2023. Crain Communications, Inc. All Rights Reserved.
    • News
      • Current News
      • Providers
      • Insurance
      • Digital Health
      • Government
      • Finance
      • Technology
      • Safety & Quality
      • Transformation
        • Patients
        • Operations
        • Care Delivery
        • Payment
      • People
      • Regional News
        • Midwest
        • Northeast
        • South
        • West
      • Digital Edition (Web Version)
    • Unwell in America
    • Opinion
      • Bold Moves
      • Breaking Bias
      • Commentaries
      • Letters
      • Vital Signs Blog
      • From the Editor
    • Events & Awards
      • Awards
        • Nominate/Eligibility
        • 100 Most Influential People
        • 50 Most Influential Clinical Executives
        • Best Places to Work in Healthcare
        • Excellence in Governance
        • Health Care Hall of Fame
        • Healthcare Marketing Impact Awards
        • Top 25 Emerging Leaders
        • Top 25 Innovators
        • Diversity in Healthcare
          • - Luminaries
          • - Top 25 Diversity Leaders
          • - Leaders to Watch
        • Women in Healthcare
          • - Luminaries
          • - Top 25 Women Leaders
          • - Women to Watch
      • Conferences
        • Digital Health Transformation Summit
        • ESG: The Implementation Imperative Summit
        • Leadership Symposium
        • Social Determinants of Health Symposium
        • Women Leaders in Healthcare Conference
      • Galas
        • Best Places to Work Awards Gala
        • Health Care Hall of Fame Gala
        • Top 25 Diversity Leaders Gala
        • Top 25 Women Leaders Gala
      • Virtual Briefings
        • - Hospital of the Future
        • - Value Based Care
        • - Hospital at Home
        • - Workplace of the Future
        • - Digital Health
        • - Future of Staffing
        • - Hospital of the Future (Fall)
      • Webinars
    • Multimedia
      • Podcast - Beyond the Byline
      • Sponsored Podcast - Healthcare Insider
      • Video Series - The Check Up
      • Sponsored Video Series - One on One
    • Data Center
      • Data Center Home
      • Hospital Financials
      • Staffing & Compensation
      • Quality & Safety
      • Mergers & Acquisitions
      • Data Archive
      • Resource Guide: By the Numbers
      • Surveys
      • Data Points
    • MORE+
      • Contact Us
      • Advertise
      • Media Kit
      • Newsletters
      • Jobs
      • People on the Move
      • Reprints & Licensing