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Last Year Was A Wild One For Health Law — What’s On The Docket For 2015?


January 22nd, 2015

Everywhere we look, we see the tremendous impact of new legal developments—whether regulatory or statutory, federal or state—on health and health care. These topics range from insurance to intellectual property to religion to professionalism to civil rights. They remain among the most important questions facing Americans today.

This post is the first in a series that will stem from the Third Annual Health Law Year in P/Review event to be held at Harvard Law School on Friday, January 30, 2015. The conference, which is free and open to the public, brings together leading experts to review major developments in health law over the previous year, and preview what is to come.

The event is sponsored by the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School and the New England Journal of Medicine, and co-sponsored by Health Affairs, The Hastings Center, and the Center for Bioethics at Harvard Medical School. Below, we will highlight a few themes that have emerged so far. The conference’s speakers will author a series of posts that follow on more specific topics.

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Implementing Health Reform: FAQs On Taxes And The ACA (January 24 Update)


January 13th, 2015

In the next few days, consumers who enrolled in qualified health plans through the marketplaces in 2014 will begin receiving IRS form 1095-As from the marketplaces, be they the federally facilitated marketplaces (FFMs) or state-operated marketplaces.  The form 1095-A is the form that provides individuals who have enrolled in qualified health plans through the marketplaces the information they need to fill out form 8962, which in turn is the form enrollees will need to reconcile the advance premium tax credits (APTC) they received in 2014 with the premium tax credits they were actually entitled to.  The marketplace also reports the information on the 1095-A to the IRS.

On January 12, 2015, HHS released a series of frequently asked questions about the 1095-A at its REGTAP website, which are reviewed here. This post also briefly covers other ACA-related developments.

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Implementing Health Reform: Open Enrollment Progress For 2015 (Updated)


December 31st, 2014

On December 30, 2014, the Centers for Medicare and Medicaid Services released several reports on enrollment numbers covering the second marketplace enrollment period to date.  It released its first monthly ASPE (Assistant Secretary for Planning and Evaluation) report covering October 15 to November 15, 2014.   (press release here  )  The ASPE report for the first time includes some — very incomplete — information on enrollment in the state-operated exchanges.

CMS simultaneously released a snapshot report covering enrollment in the Federally Facilitated Marketplace (FFM) for the sixth week of open enrollment.

The bottom line is that the reports confirm what we all knew already: The first month of open enrollment is going much better than the early months of open enrollment last year.  As of December 26, 6,490,492 individuals had selected a plan through the FFM.  Only 96,446 selected a plan in Week 6, compared to 3.9 million in week 5, emphasizing again the importance of the December 15 deadline for January 1 coverage in driving enrollment.

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Implementing Health Reform: Proposed Changes To Summary Of Benefits And Coverage, Uniform Glossary (Updated)


December 23rd, 2014

On December 22, 2014 the Departments of Treasury, Labor, and Health and Human Services, stubbornly refusing to allow the rest of us to start our holidays, released a joint notice of proposed rulemaking to amend the Summary of Benefits and Coverage and Uniform Glossary rule (fact sheet).  In conjunction with the proposed rule, the Departments released a proposed updated Uniform Glossary and proposed updated summary of benefits and coverage (SBC) templates, SBC language, instructions, and coverage example narratives and calculators.  The changes proposed will be effective as of the first open enrollment period or plan year beginning on or after September 1, 2015.

The Affordable Care Act requires health insurers to offer to group health plans, and health insurers and group health plans to offer to their applicants and enrollees, SBCs that summarize the coverage offered by the insurer or plan, including coverage and limitations, through the use of a common SBC template.  The SBC allows potential groups and applicants to comparison shop among potential plans, but also helps enrollees to better understand the coverage offered and limitations and restrictions imposed by the plan in which they are enrolled.

The initial SBC rule, promulgated early in 2012, was the end product of a lengthy process and was based on the recommendations of a panel convened by the National Association of Insurance Commissioners.  Since the 2012 rule was issued, however, the agencies have released a stream of frequently asked questions modifying, clarifying, and conditioning the 2012 rules. (FAQs Parts VII, VIII, IX, X, XIV, and XIX) The proposed regulations and accompanying documents incorporate much of this interim guidance, and they update the 2012 rule to take account of the changes made in insurance markets by the 2014 reforms.

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New Health Policy Brief: Reenrollment


December 22nd, 2014

This year open enrollment under the Affordable Care Act (ACA) began on November 15, allowing new customers to sign up for health insurance. Open enrollment also provided current policyholders the chance to change plans and request a redetermination on the amount of subsidy they received. During this second year of open enrollment for the ACA’s insurance Marketplaces, insurers and policy makers are working to keep last year’s enrollees in the system — and the Department of Health and Human Services (HHS) estimates that 95 percent of them are eligible for automatic renewal.

A new policy brief from Health Affairs and the Robert Wood Johnson Foundation (RWJF) examines the pros and cons of reenrollment options for consumers, whether they are using the federal Marketplace or live in states that operate their own exchanges. Automatic reenrollment means that almost seven million people already enrolled will not necessarily need to flood HealthCare.gov and exchanges during open enrollment. On the other hand, it also may discourage consumers from exploring alternative coverage that might better fit their needs and get a more accurate determination of eligibility for subsidies.

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New Findings About The ACA’s Impact On Employer-Sponsored Health Insurance


December 19th, 2014

Since the Affordable Care Act (ACA) was signed into law, some of its critics have predicted that businesses would discontinue offering employer-sponsored health insurance, moving employees into the individual Marketplaces. If widespread dropping of employer-sponsored health insurance were to occur, government costs could increase since many low-wage workers would qualify for federal subsidies in the Marketplaces.

A new study, released today as a Web First by Health Affairs, examined data from the Health Reform Monitoring Survey for June 2013 through September 2014, assessing any early changes of employer-sponsored insurance under the ACA. Authors Fredric Blavin, Adele Shartzer, Sharon Long, and John Holahan report that the percentage of workers with employer offers for health insurance was basically unchanged between June 2013 and September 2014: 82.7 percent versus 82.2 percent. The authors are all affiliated with the Health Policy Center at the Urban Institute, in Washington, D.C. 

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Implementing Health Reform: Enrollment And Reenrollment For 2015 (Updated)


December 16th, 2014

The December 15, 2014 deadline for reenrolling in qualified health plan (QHP) coverage to assure continuous coverage as of January 1, 2015 has come and gone.  Individuals who were enrolled through the federally facilitated marketplace (FFM) for 2014 but did not return to the marketplace to shop for 2015 plans will be passively reenrolled in their 2014 plan or in a plan similar to it.  The 2015 open enrollment period lasts through February 2015, and individuals can return to the FFM at any time before then to change plans.  But the change will not be effective for January 1.

A number of state-operated exchanges—including New York, Massachusetts, Idaho, Rhode Island, Washington, Minnesota, and California—have reportedly either extended the date by which individuals can enroll or reenroll and still have coverage effective January 1 or given individuals who had begun the enrollment process as of December 15 extra time to complete the process for January 1 coverage.  The FFM has not extended the deadline.

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Investing In The Health And Well-Being Of Young Adults


December 15th, 2014

Young adulthood — ages approximately 18 to 26 — is a critical time in life. What happens during these years has profound and long-lasting implications for young adults, and — because many are parents — for the next generation.  Healthy, productive, and skilled young adults are critical for the nation’s workforce, global competitiveness, public safety, and national security.

Although young adults are resilient and adaptable, they are surprisingly unhealthy, showing a worse health profile than both adolescents and adults in their late 20s and 30s. Recent national attention on young adults has focused primarily on enrolling them in health care insurance to offset the higher costs associated with care for older adults under the Affordable Care Act 2010 provisions — mistakenly implying that it is not in their own interest to have health insurance. Unfortunately, too little attention has been paid to young adults’ specific health needs and the transitions they face once they are in the health care delivery system.

The Institute of Medicine and National Research Council recently released a new report titled Investing in the Health and Well-Being of Young Adults, which reviews what is known about the health, safety, and well-being of young adults and offers recommendations for policy and research. It was prepared by a committee with expertise in multiple disciplines, including public health, health care, behavioral health, sociology, social services, human development, neuroscience, economics, business, occupational health, media, and communications. We served as chair and a member of the committee, respectively.

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The Accidental Administrative Law Of Policymaking In The Medicare Program


December 11th, 2014

Editor’s note: This post is part of a series of several posts stemming from presentations given at “The Law of Medicare and Medicaid at Fifty,” a conference held at Yale Law School on November 6 and 7.

When Congress establishes a new regulatory program, it lodges the program in a regulatory agency or executive department. A regulatory agency generally has presidentially appointed commissioners with staggered terms and expert staff. This design provides insulation from politics and facilitates applying technical expertise to regulatory problems. Also, administrative agencies make rules and policy and have the powers of investigation, adjudication, and sanction to enforce compliance. Administrative law, an essential instrument of democracy, regulates the operation and procedures of government agencies.

The Social Security Amendments of 1965 established Medicare in the Social Security Administration (SSA). Medicare initially contained two parts, hospital insurance for hospital and related services and supplementary medical insurance for physician and other outpatient services. Pursuant to contract, Medicare contractors handle claims and pay providers as well as adjudicate appeals and make program policy.

This post chronicles the development administrative law, policymaking, and regulation in the Medicare program. It describes how the program evolved a revolutionary collaborative model of regulation that could provide a useful guide for other programs.

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Two Theologies Have Blocked Medicare-For-All


December 11th, 2014

Editor’s note: This post is part of a series of several posts stemming from presentations given at “The Law of Medicare and Medicaid at Fifty,” a conference held at Yale Law School on November 6 and 7.

In the 50 years since Medicare was enacted, Congress has never seriously considered extending Medicare to all Americans, nor even lowering Medicare’s eligibility age below 65. This pattern persisted even during those periods when national health insurance was at the top of the national agenda. This is not what the original advocates of Medicare anticipated when Medicare was enacted in 1965. They saw Medicare as the cornerstone of a national system of health insurance that would eventually cover all Americans.

Two Myths that Undercut Medicare-for-All: Managed Care and Competition

In the paper we presented at the Yale conference, we reviewed short- and long-term factors affecting the debate about Medicare over its lifetime, and then turned to a discussion of two long-term factors: the rise of what came to be called the managed care movement, and the resurgence of a longstanding campaign promoting the idea that competition can right the wrongs of American medicine.

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What To Watch For During This Year’s Open Enrollment Period: Lessons From The Health Reform Monitoring Survey


December 10th, 2014

The Obama Administration recently lowered its expectations on the number of individuals that are likely to enroll in health insurance plans through the Marketplace by the end of 2015—suggesting that it might be more difficult than expected to find and enroll remaining uninsured residents while retaining people who signed up during the first open enrollment period (New York Times; Wall Street Journal; Washington Post’s “Wonkblog”).

One potential barrier to enrollment is low levels of Marketplace awareness among the uninsured: September 2014 estimates from the Urban Institute’s Health Reform Monitoring Survey (HRMS) indicate that only 52 percent of uninsured adults reported hearing some or a lot about the health insurance Marketplace created by the Affordable Care Act (ACA). Despite this large knowledge gap, awareness of the Marketplace has improved since last September, when only 30 percent of the uninsured reported hearing some or a lot about the Marketplace prior to the first open enrollment period.

While increasing awareness of the Marketplace will continue to be important as the second open enrollment period unfolds, there are two additional issues that may determine how many more uninsured people actually gain coverage this year. First, will the remaining uninsured be reluctant to seek coverage and enroll during the current open enrollment period, and if so, why? Second, for people seeking information on health plans, what sources of information are they likely to turn to, and will those sources be adequate to meet the demand?

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Section 1332 Waivers And The Future Of State Health Reform


December 5th, 2014

Editor’s note: This post is part of a series of several posts stemming from presentations given at “The Law of Medicare and Medicaid at Fifty,” a conference held at Yale Law School on November 6 and 7.

The Affordable Care Act (ACA) turbocharges state innovation through a number of provisions, such as the creation of the Center for Medicare & Medicaid Innovation, funding for states to establish customized insurance exchanges, and Medicaid reforms such as health homes and projects geared toward the dual eligible population. Yet another component of the law holds even more potential for broad reform. Buried in Section 1332 of the law is a sparkplug for innovation called the State Innovation Waivers program.

Also known as 2017 waivers or Wyden waivers, 1332s offer wide latitude to states for transforming their health insurance and health care delivery systems. According to the statute, states can request that the federal government waive basically every major coverage component of the ACA, including exchanges, benefit packages, and the individual and employer mandates. But the cornerstone of 1332 waivers is the financing. To fund their reforms, states can receive the aggregate amount of subsidies—including premium tax credits, cost-sharing reductions, and small business tax credits—that would have otherwise gone to the state’s residents. Depending on the size of the state, the annual payment from the federal government for alternate coverage reform could reach into the hundreds of millions or even billions of dollars.

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The Family Glitch, Other Thorny Children’s Coverage Policy Issues, And The Future Of CHIP


December 3rd, 2014

Editor’s note: For more on the topic of children’s health, stay tuned for the December issue of Health Affairs, set to be released next week.

Health Affairs’ recent policy brief on the family glitch highlights one of the key issues affecting how well children will be served in the new post Affordable Care Act (ACA) coverage landscape. Many observers thought that with the creation of health insurance marketplaces and subsidies for low-income families, there would no longer be a need for the Children’s Health Insurance Program (CHIP), which was created in 1997 to provide health coverage for uninsured low-income children.

Together with its larger sister program, Medicaid, CHIP has been quite successful in achieving this legislative goal. From 1997 to 2012, the national rate of uninsured children was cut in half from 14 to 7 percent. Yet, 7 million children still remain uninsured. The ACA, meanwhile,  was aimed primarily at reducing numbers of uninsured adults. The question now is, what policies and systems are needed to sustain and further the progress that has been made to increase rates of children’s insurance?

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Implementing Health Reform: Federal Exchange Reenrollment And More (Updated)


December 2nd, 2014

On December 1, 2014, the Centers for Medicare and Medicaid Services (CMS) released a Guidance for Issuers on 2015 Reenrollment in the Federally facilitated Marketplace (FFM).  This guidance sets out in great detail—with clarifying examples—the process which the FFM and insurers will use to send and receive enrollments and reenrollments for 2015, including the process that the FFM will use to communicate to an insurer when a 2014 enrollee selects a different insurer for 2015 coverage.  The guidance is primarily directed at insurers but should also be of interest to consumers and those who are assisting them.  It demonstrates, I believe, a much higher degree of planning and intentionality than was evident in the 2014 open enrollment period, when enrollment rules often seemed to be developed on the fly.

This post describes the reenrollment guidance, as well as initial enrollment figures for the FFM and other ACA-related developments.

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Implementing Health Reform: Minimum Essential Coverage And The Multi-State Plan


November 24th, 2014

Two earlier posts this past weekend analyzed the massive Department of Health and Human Services 2016 Benefit and Payment Parameter Proposed Rule, released on November 21.  Also on November 21, the Internal Revenue Service of the Department of the Treasury released a final rule on Minimum Essential Coverage and Other Rules Regarding the Shared Responsibility Payment for Individuals, while the Office of Personnel Management released proposed modifications to the multi-state plan (MSP) program rule.  This post explores these rules.

Minimum Essential Coverage

The ACA requires Americans to either maintain “minimum essential coverage” (MEC) or pay a tax.  There are a number of exceptions to the requirement, however, and the concept of MEC can become quite complicated.  The final rule published by the IRS provides guidance as to the meaning of MEC and the rules governing some of the exceptions.

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Medicare, Medicaid, And Pharmaceuticals: The Price Of Innovation


November 20th, 2014

Editor’s note: This post is part of a series of several posts stemming from presentations given at “The Law of Medicare and Medicaid at Fifty,” a conference held at Yale Law School on November 6 and 7.

Through much of the last half century, Medicare and Medicaid (MM) have not for the most part supported research intended to lead to new drugs. For their role in drug development, we need to look to infrastructure and incentives. The record of the National Institutes of Health (NIH) illustrates the potential of both for pharmaceutical innovation. The current budget of NIH, the big elephant in the zoo of the federal biomedical enterprise, is $30 billion, but apart from a dozen small programs devoted to targeted drug development, most of these billions are not aimed directly at pharmaceutical innovation (See page 234).

Yet the NIH investment in biomedicine has indirectly fueled drug development in the private sector to a huge degree. It has paid for the training of biomedical scientists and clinicians, many of whom went on to staff the drug industry, especially its laboratories. NIH-sponsored research has also generated basic knowledge and technologies and it has encouraged universities to spin out their potentially useful findings into the industry by allowing for the patenting and licensing of the findings.

Like NIH, MM has helped fuel drug development indirectly by supporting selected experimental cancer treatments, medical education, and some clinical research and training. But investment in these activities has been small and their impact on drug development apparently very limited. In contrast to NIH, the MM stimulus to drug innovation has resided not in the production of new scientists or the patented uses of new knowledge, but principally in markets and pricing.

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Health Affairs Web First: In 11-Country Survey Of Older Adults, Americans Are Sickest But Have Quickest Access To Specialists


November 20th, 2014

A new survey of the health and care experiences of older adults in eleven different countries, released recently as a Web First by Health Affairs, found that Americans were sicker than their counterparts abroad, with 68 percent of respondents living with two or more chronic conditions and 53 percent taking four or more medications. Also, Americans were most likely to report cost-related expenses for care (19 percent of respondents) than residents in any of the other countries surveyed.

On the other hand, the United States compared favorably in some aspects: For example, 83 percent of US respondents had a treatment plan they could carry out in their daily life, one of the highest rates across the surveyed countries.

A few other key findings:

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The Case For Advancing Access To Health Coverage And Care For Immigrant Women And Families


November 19th, 2014

Before the end of the year, the Obama administration is expected to announce that millions of undocumented immigrants will be able to lawfully stay in the United States. The new Congress may also take action on immigration reform legislation. Regardless of how it happens, any immigration policy change presents a good opportunity to revisit what has gone wrong with insurance coverage and health care for millions of immigrants, both undocumented and lawfully present, living and working in communities across the country.

A web of policy barriers to public and private insurance options effectively keeps millions of immigrant women and their families from affordable coverage and the basic health care—including sexual and reproductive health services—that coverage makes possible. Removing these barriers would advance the health and economic well-being of immigrant women, their families, and society as a whole. Most immediately, administrative steps advancing access for even some immigrants would be an important step forward. The case for doing so is compelling.

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Challenges For People With Disabilities Within The Health Care Safety Net


November 18th, 2014

Medicare and Medicaid were passed to serve as safety nets for the country’s most vulnerable populations, a point that has been reemphasized by the expansion of the populations they serve, especially with regards to Medicaid. Yet, even after 50 years, the disabled population continues to be one whose health care needs are not being met. This community is all too frequently left to suffer health disparities due to cultural incompetency, stigma and misunderstanding, and an inability to create policy changes that cover the population as a whole and their acute and long-term needs.

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How Consumers Might Game The 90-Day Grace Period And What Can Be Done About It


November 17th, 2014

Under the Patient Protection and Affordable Care Act (ACA), individuals receiving a federal subsidy are entitled to a three-month premium nonpayment grace period. As long as such an individual has paid at least the first month’s premium of the year, in any subsequent month the individual has three months to make the premium payment before coverage is terminated.

The grace period has obvious benefits for consumers, yet as a recent Health Affairs Health Policy Brief describes, this provision of the law has created significant apprehension among doctors and other health care providers who worry they will go unpaid when coverage is retroactively terminated for their patients. Unfortunately, as we explain here, this provision could have even broader adverse implications for the health care system.

The grace period law could encourage subsidized individuals to regularly pay only nine months of premiums and receive, in effect, twelve months of coverage. Should this gaming become widespread it could increase premiums (perhaps by as much as several percentage points) for everyone who purchases coverage in the individual (non-group) exchanges.

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