Health Highlights


Public Exchanges Dominate the Headlines, but Will Private Exchanges Really Shape the Future?

Author: Joel Ario

As states begin to announce which insurers will participate in their Exchange marketplaces, we are seeing public Exchanges dominate the headlines. With more information emerging, we are moving from opinion to fact about the Exchanges that will determine the fate of the Affordable Care Act (ACA). There are many promising signs, particularly in states like California and Oregon that are running their own Exchanges. There is also positive news from states like Michigan and Ohio, where more than a dozen insurers have filed to compete in federally-run Exchanges.

Warning signs are emerging, however, in some smaller states, where only a few insurers have agreed to compete. The cautious response of some major national insurers is a concern. Ideally, the Exchanges will have several well capitalized insurers going head to head for market share—so it’s important to see participation from the large, nationwide players.

Pricing Will Be Settled at the State Level

The facts are less developed on the pricing side, but we are seeing some encouraging signs. There already is an unprecedented level of transparency, with many states publishing proposed rates. It is clear that pricing will be settled at the state level. In fact, 45 states have been certified as “effective rate review” states under the ACA for the individual market.

The strongest pricing trend so far is the tremendous variation, which is not surprising given the difficulty of predicting who will sign up for the Exchanges in 2014. As one CEO said, “I told my actuaries to be bold on our home turf and safe everywhere else.” Consumers can only hope there are a lot of insurers seeking to protect their home base.

Private Exchanges Are under the Radar Screen—but Will Drive Innovation

Although private Exchanges are not yet attracting the media attention that public marketplaces are, they may end up shaping the future. By 2020, it’s likely that more Americans will be comparison shopping in private Exchanges than in public ones. In addition, many significant innovations in Exchanges will start on the private side and migrate to the more regulated public marketplaces.

Let’s look at the numbers. The Congressional Budget Office (CBO) expects seven million consumers to enroll in public Exchanges in year one—with that number growing to more than 20 million by 2019. Projections vary, but most experts expect public Exchanges to attract less than 30 million lives in their first five years.

One big reason is that more than 150 million Americans get health insurance through their employers. With another 100 million or so in Medicare and Medicaid, there simply is not a big enough market for individual insurance—unless employers decide to get out of the business. Some small businesses may make that choice. Public Exchanges are open to small businesses, because they are the ones that often cannot afford to provide coverage.

More than 99% of large employers, however, continue to offer health insurance. It’s unlikely that they will stop providing that coverage, especially since the ACA imposes penalties on large employers that do not provide insurance to full-time employees.

While the vast majority of large employers will offer coverage, they will be seeking ways to make it more affordable. This will give private Exchanges the opportunity to offer the same competitive model as public Exchanges—except employees will bring an employer contribution rather than a tax credit to the marketplace. Even more significantly, private Exchanges will be freer to innovate their way to an Amazon-like shopping experience than public Exchanges, which must work through public processes that make it difficult to move quickly. In addition, private Exchanges will find it easier to offer ancillary products and be directive with consumers—precisely the things that have proven most successful in attracting consumers, particularly younger ones, to web-based purchasing.

For these reasons, Accenture recently predicted that “private Exchange purchasing will approach public Exchange purchasing enrollment levels as soon as 2017 and surpass them soon after.” Recent polls suggest this goal can be met by a growing number of private Exchanges offering large employers various options for a middle ground between sticking with the status quo and dropping coverage.

The Nation’s Largest Employers Will Benefit from Flexible Options

Competition will be most fierce in the mega-group market. Three of the nation’s largest brokers are pitching their private Exchanges to employers with 1000 or more employees:

  • Aon Hewitt was first out of the box with “Corporate Exchange”—a multi-carrier private Exchange with an approach similar to the ACA public Exchange model. “Corporate Exchange” will offer standardized products within metal levels and a sophisticated risk adjustment mechanism to protect against adverse selection. Aon Hewitt has secured the participation of two mega-employers, Sears and Darden. In addition, it announced that nine national and regional carriers—including United Healthcare, Cigna and the Health Care Service Corporation (HCSC), which operates Blue Cross and Blue Shield (BCBS) plans for 14 million members—will offer products on “Corporate Exchange.” The Aon Hewitt model requires employers to provide a defined contribution, with employees able to choose from an array of fully-insured products.
  • Mercer joined forces with Optum’s private Exchange, Connextions, to launch the “Mercer Marketplace.” By offering a more flexible approach that accommodates insured and self-funded options, Mercer secured the participation of the nation’s five largest commercial insurers —Wellpoint, United, Aetna, Cigna, and Humana—as well as of large nonprofit BCBS plans in New York and Georgia.
  • Towers Watson bought Extend Health a year ago to leverage its experience in offering health coverage to 500,000 retirees. The Towers Watson “OneExchange” solution offers employers even greater flexibility in maintaining their current purchasing role, including self-insurance and active purchasing approaches that capitalize on the employer’s prior experience. The three largest national insurers (United, Wellpoint, and Aetna) plus Kaiser and other non-profit plans will participate in “OneExchange.”

Mid-Size Employers Will Have Customized Options

With the big brokers focusing on the largest employers, a different marketplace is emerging for regional and state-based employers and carriers. There are two leaders in this space. The first is Liazon Corporation, which is partnering with Arthur Gallagher to offer the “Bright Choices Exchange.” The second is the Bloom Exchange, which was purchased by three BCBS carriers in 2012 to partner with BCBS plans and other carriers at the state level. Bloom, Liazon, and others will offer customized options in any state where there is a critical mass of employers and carriers interested in establishing a private Exchange. In most cases, their target market is employers with more than 50 employees, who are not eligible for the public Exchanges until at least 2016.

There Is a Role for Private Exchanges in the Individual Market

The individual market is likely to be dominated by the public Exchanges, since they are the only ones who can determine eligibility for tax credits. The federal government, however, has carved out a role for private Exchanges to partner with public Exchanges in offering subsidized coverage.

Back in July 2011, the first set of proposed Exchange regulations included a provision (now codified as 45 CFR 155.220) allowing “web-based brokers” to enroll consumers in subsidized coverage by establishing a “back-office” connection to the public Exchange. The connection lets subsidy-eligible consumers have their applications sent to a public Exchange for an eligibility determination and then returned to the private Exchange, where they can select a plan.

The regulation requires registration and training, as well as adherence to specific consumer safeguards. The most important protection is the requirement that private Exchanges must display all “qualified health plans” or QHPs (the products that meet ACA standards for subsidy eligibility), so consumers have the same choices presented in the same even-handed manner as they would on a public Exchange. In May 2012, the Department of Health and Human Services (HHS) announced that the federal Exchange (since rebranded as the federally-facilitated marketplace or FFM) would contract with web-based brokers in any FFM state where the state allowed it.

In 2014, there will be 34 FFM states. eHealthInsurance, the nation’s largest multi-carrier private Exchange in the individual market, recently announced that a partnership with the FFM is “imminent.” The FFM also is likely to partner with a broad assortment of entities in a position to help enroll low-income applicants in subsidized coverage. It is less clear whether the 16 state-based Exchanges and D.C. will enter into similar arrangements. Federal regulations clearly allow it—and there is a strong argument in favor of giving consumers as many ports of entry as possible.

Some states have expressed concerns, however, that private Exchanges and other web-based brokers won’t follow through on giving consumers full access to all QHPs. These are valid issues, given that these entities may have commission-based models or other financial incentives to steer business to some carriers over others. It is interesting to note, however, that HHS recently went a step further in increasing possible points of entry, allowing carriers to enroll consumers in their own QHPs through “issuer specific” web sites without having to offer the QHPs of competing carriers.

The new guidance, published on May 1, 2013, may be controversial in some states—but it does attempt to achieve a balance and ensure fair representation of all QHPs. HHS expects that agents and brokers will inform consumers about their “business relationships” as well as the “additional information and choices” available on public Exchanges. It remains to be seen how well the balance will be maintained.

Are There Synergies or Conflicts between Public and Private Exchanges?

California recently said it would not embrace web-based brokers in 2014—and we may see conflicts emerge between public and private Exchanges over branding and other issues. In reality, public and private Exchanges can prove beneficial to each other in multiple ways. Both aim to build transparent, consumer-oriented marketplaces in which traditional insurers and new entrants must elevate their game to compete effectively, much as sellers in other web-based marketplaces have had to do.

The sponsors of private Exchanges have been candid in acknowledging that the multifaceted campaigns to promote the public Exchange marketplaces will help raise the profile of their efforts as well. By the same token, public Exchanges have much to gain from private Exchanges. Efforts to discredit the ACA are a bit more difficult if large employers are gravitating toward similar Exchange models. Public and private Exchanges can help legitimize each other, as they both work to increase the transparency of the health insurance marketplace.

We do not know yet which Exchange marketplaces will prove most successful. There will be some Americans who instinctively trust the public Exchanges more, secure in the knowledge that products have been vetted. Others will gravitate toward private Exchanges, confident that the private market will be more innovative and responsive to their needs. States like Vermont will view their Exchanges as a precursor to a single payer, while states like Utah will look to privatize their Exchange marketplaces. Some public and private Exchanges will experiment with active purchasing strategies, testing the potential to use market leverage to reduce prices and improve quality. Others will take a clearinghouse approach to achieve the same ends.

One thing we do know is that we’ll see many different approaches and preferences, as both public and private Exchanges seek to find the optimal model. In the end, the hope is that consumers will benefit from experimentation along many different paths—all aimed at getting us to a health insurance system that is more transparent, easier to navigate and better geared to our needs.

NOTE: Did you miss Joel’s recent article, “Update on the Exchanges: One-Stop Shopping for Health Insurance?” Click to download a free PDF.

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Understanding RADV: The Stakes Are Huge, and Key Decisions Are Coming

Author: Michael Kolber

With so much changing in health insurance regulation, stakeholders might overlook a complicated area with an intimidating name: risk adjustment data validation or RADV. Health plans and providers would be wise to pay attention to this tricky topic. The stakes are high, and federal regulators will be making critical decisions soon.

The Background: Balancing Access, Fairness and Price Stability

To understand RADV, it’s important to know the drivers behind it. The Affordable Care Act (ACA) health insurance reforms that become effective in 2014 have the potential to disrupt the health insurance market. In seeking to expand access to affordable, quality coverage, the ACA deprives insurers of the ability to price their products based on the risk they are assuming when they enroll sick members.

To compensate plans fairly for taking on this added risk—as well as to keep premiums stable—the U.S. Department of Health and Human Services (HHS) is implementing a risk adjustment program for all non-grandfathered commercial health insurance sold in the individual and small employer markets. Other risk adjustment programs, and their resulting RADV issues, are already in place for Medicare Advantage and some state Medicaid managed care programs. Massachusetts is the only state with HHS permission to run its own risk adjustment for commercial health insurance in 2014.

Under risk adjustment, insurers that enroll healthier-than-average individuals will make payments to insurers that enroll sicker-than-average individuals in their state. The goal of these transfers is to keep insurers’ revenue at a similar level to what it would have been had they been allowed to incorporate health risk into their pricing calculations for premiums. The Congressional Budget Office estimates that risk adjustment transfers could total around $10 billion a year nationwide.

The Calculation: Predicting the Average Health Status of Enrollees

In a series of regulations, HHS has explained that risk adjustment transfers will be calculated based on projecting the average health status of each plan’s enrollees. These risk scores will take into account the ages, genders, and documented diagnoses of each plan’s members. For privacy reasons, the scores will be calculated on computers owned by each insurer, not HHS. HHS will receive only the enrollee risk scores, not the underlying diagnosis and demographic data.

This data collection design makes auditing all the more important, particularly given the amount of money at stake. In Medicare Advantage, RADV audits have been controversial, if only because they can result in insurers having to return payments they believed they have earned.

HHS has learned some key lessons about implementing RADV from its Medicare experience. So far, however, it has shared very little about how RADV will operate for commercial health insurance. HHS has revealed that it will calculate an error rate based on the audit results and use that error rate to adjust transfers. To minimize disruption, the error rate will be used only prospectively.

For example, insurers would generate risk scores based on their 2016 experience. HHS then would calculate and invoice risk adjustment transfers in 2017. Simultaneously, HHS would audit the 2016 risk scores and calculate an error rate. It then would apply that error rate to adjust the payments being made on insurers’ 2017 claims experience.

The Audit Process: Two Levels and the Chance for an Appeal

HHS has said that there will be two levels of audits. The first audit will be conducted by an auditor that the insurer hires, with HHS determining the audit sample. The second will be performed by HHS auditors, who will validate the accuracy of the first audit’s results. Insurers who disagree with the audits’ findings have an opportunity to file an administrative appeal.

If Medicare RADV is a guide, the audit process will require insurers to collect medical records from providers, demonstrating that the diagnoses reported are accurate. Providers should be following closely how RADV develops to minimize the burden it poses on them.

The Questions: Many Open Issues Remain, as Discussions Continue

Many questions linger around RADV. How will HHS select the audit samples—and how large will they be? What auditing standards will apply? What appeal rights will insurers have? HHS has already said it will not adjust payments in the initial years as it evaluates the accuracy of risk and error scores. But how soon will HHS begin using the RADV audits to adjust transfers?

This month, HHS is holding a stakeholders’ meeting to discuss these questions with insurers, states and others. After that session, it is expected to release additional information about how RADV will be administered. Manatt will be following these issues for our clients and participating in the HHS stakeholders’ meeting. Watch future issues of Healthcare Law for added information, as it becomes available.

NOTE: Do you have questions about RADV and its implications? To discuss your specific issues and concerns, please contact Michael Kolber at or 212-790-4568. In addition, to assist you in navigating today’s volatile healthcare environment, Manatt Health Solutions (MHS) is offering a series of analyses, fully explaining each new guidance and its implications. The analyses provide concise and informative summaries, including relevant timelines, operational details and responsibilities, so you can respond effectively. For more information, contact Michael Kolber at

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Chambers USA 2013 Ranks Manatt’s Healthcare Practice among the Top in the Nation—and Recognizes 10 Healthcare Attorneys for Their Excellence

Manatt’s Healthcare practice was recognized as a national leader in Chambers USA 2013: America’s Leading Lawyers for Business. Manatt also was honored for its excellence in healthcare with rankings in California and New York, where it placed in the highest tier. Manatt was particularly recommended for its outstanding client service and commercial astuteness. In addition to its practice rating, 10 of Manatt’s attorneys were ranked among Chambers’ leading lawyers in healthcare, including:

Since 1999, Chambers has been identifying the leading law firms and lawyers in the U.S. through interviews with thousands of attorneys and their clients. To earn inclusion, both firms and individuals must be recommended. The qualities on which rankings are assessed include technical legal ability, professional conduct, client service, commercial astuteness, diligence, commitment and other qualities clients highly value.

Chambers praised Manatt’s healthcare team for being “renowned for its work in the healthcare IT arena and…recognized for its expertise in reform issues.” It also called Manatt a “fine choice of counsel for healthcare-related disputes and government investigations” and cited our “adept handling of Medicaid matters.” Interview subjects spoke to our “collegial, flexible and supportive way of working” and gave kudos to Manatt team members for being “top-rate subject matter experts.”

In total, the 2013 Chambers rankings honored 23 Manatt lawyers and 10 of the firm’s practices, including Healthcare, Labor & Employment; Commercial Litigation; Entertainment; Real Estate; and Advertising, Marketing and Media. We want to congratulate all of our attorneys who earned Chambers rankings—and all the team members who helped our practices achieve our national leadership position.

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