The Centers for Medicare and Medicaid Services released a notice for proposed rulemaking last night to substantially modify how the ACA is regulated and implemented. The goal, as shown in Tables 16 and 17 is to decrease the number of people who have health insurance:

CMS is justifying the rule as deterring fraudulent enrollment which they mean low income individuals who live in Medicaid non-expansion states are estimating that their income just goes over 100% Federal Poverty Level so that they can gain coverage.

we note that coverage losses are expected to be concentrated in nine States where erroneous and improper enrollment is most noticeable (that is, Alabama, Florida, Georgia, Mississippi, North Carolina, South Carolina, Tennessee, Texas, and Utah), although we also expect minor coverage losses across all States as the administrative burdens associated with this rule would be applied uniformly across the country.

This is a proposed rule. There is a 30 day comment window that opens once the proposal is officially published. Comment on the rule. Point out where the rule has consequences that it is not addressing, point out where the rule contradicts itself and is based on flawed logic and shady evidence. CMS has to address relevant and on-topic comments or it creates substantial legal vulnerability. There are several proposals within the rule that got smacked down by judges in 2019 because they were arbitrary and capricious.

I have several comments that I will need to write — especially on proposals to change 155.335 (J) and 155.315(f)7 as those things directly touch on some of my favorite papers.

But I want to step back for a second.

This proposal rule is thermostatic politics. One party likes something so they interpret a law in one direction and then the other party comes in and tweaks the interpretation in the other direction. A lot of the proposed rule tries to move things back to the 2019 policy environment. It is very explicit that the population of interest and concern for this CMS is the upper-income, non-subsidized enrollees. Almost everything in this rule is justified as an effort to bring down gross, non-subsidized premiums.

And that has tremendous real world consequences. But it is within the realm of normal politics and normal policy-making and not abnormal politics. An abnormal rule would have been one that declined to pay advanced premium tax credits or otherwise violate black letter law. This rule, if implemented will lead to millions to lose health insurance and for the quality of their insurance to decline, but it is not an abnormal rule in an abnormal time.