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Hobby Lobby, Conestoga Wood, The ACA, And The Corporate Person: A Historical Myth Bedevils The Law

April 18th, 2014
by Malcolm Harkins

On March 25, 2014, the Supreme Court of the United States heard arguments in two cases—Sebelius v. Hobby Lobby Stores, Inc. and Conestoga Wood Specialties v. Sebelius—challenging the validity of the Affordable Care Act’s (“ACA”) mandate that employer-sponsored health plans cover all FDA-approved contraceptives (the “Contraceptive Mandate”). In each case, closely held plaintiff corporations contend that the Contraceptive Mandate illegally infringed upon the corporations’ freedom to exercise religion.

The cases attracted attention because the Supreme Court had agreed to hear yet another challenge to the validity of the ACA’s provisions, but it has been less noticed that both cases, and others like them, implicate a fundamental question that the Supreme Court has never decided; on what basis, if any, is a corporation a “person” entitled to assert the constitutional and statutory rights of natural persons. Without denying the significance of the challenge to the ACA’s Contraceptive Mandate, the Supreme Court’s failure to define a principled corporate person theory has had—and continues to have—important and pervasive implications for the American legal system beyond the present cases.

Typically, legal concepts creating and regulating societal rights and obligations, like the corporate personhood concept, come into being incrementally in an extended evolutionary process. That evolutionary process is characterized by a dialectic give and take in which the principles justifying—or precluding—application of the concept in a variety of different factual scenarios are gradually clarified, defined and developed through a series of judicial decisions. The problem confronting the Supreme Court as it considers the Hobby Lobby and Conestoga Wood cases is that the concept of corporate personhood did not develop gradually or in an evolutionary process in which the meaning of the concept was developed and defined. Instead, the concept of the corporate person was imposed on the law ipse dixit, that is, by judicial fiat and without definition, in a series of late nineteenth century Supreme Court cases.

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Look At Consequences Of Rejecting Medicaid Expansion Leads First Quarter Health Affairs Blog Most-Read List

April 14th, 2014
by Tracy Gnadinger

Given their recent mention in Paul Krugman’s New York Times‘ column, it’s not surprising that Sam Dickman, David Himmelstein, Danny McCormick, and Steffie Woolhandler‘s discussion of the health and financial impacts of opting out of Medicaid expansion was the most-read Health Affairs Blog post from January 1 to March 31, 2014.

Next on the list was Robert York, Kenneth Kaufman, and Mark Grube‘s discussion of a regional study on the transformation from inpatient-centered care to an outpatient model focused on community-based care. This was followed by Susan Devore‘s commentary on changing health care trends and David Muhlestein‘s evaluation of accountable care organization growth.

Tim Jost is also listed four times for contributions to his Implementing Health Reform series on Medicaid asset rules, CMS letter to issuers, contraceptive coverage, and exchange and insurance market standards.

The full list appears below.

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The Latest Health Wonk Review

April 11th, 2014
by Chris Fleming

Billy Wynne at Healthcare Lighthouse offers this week’s April Fool’s edition of the Health Wonk Review. All of the posts in Billy’s “April Fool’s” edition are an excellent read, including the Health Affairs Blog post by Dean Aufderheide on mental illness in America’s jails and prisons.

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Takeaways From The Aspen Institute’s Care Innovation Summit

April 10th, 2014
by Matthew Richardson

Back in February, The Aspen Institute and The Advisory Board Company sponsored the Care Innovation Summit in Washington, DC. With a keynote address from Secretary of Health and Human Services Kathleen Sebelius, the daylong summit featured some of the newest data and research on the rapidly evolving U.S. health care landscape.

Featured speakers such as Jeffrey Brenner of the Camden Coalition of Healthcare Providers and Claudia Grossmann of the Institute of Medicine in addition to others from State and Federal government, insurers, hospitals, and research institutions offered insights on higher-value care and improved health for individuals and populations.

Here are five most memorable takeaways:

1. Health Care Cost Inflation Has Slowed

Perhaps the most eye-catching data trend presented was the dramatic slowing of Medicare spending showcased by Patrick Conway, Director of CMMI (presentation available here). The collapse of annual per capita spending growth is important not only because it implies significant value changes are underway in the provision of ever more services by Medicare, but also because it can further mean many things to many people.

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Implementing Health Reform: Additional Enrollment Opportunities And ACA Litigation (Updated)

March 26th, 2014
by Timothy Jost

On March 26, 2014, the Centers for Medicare and Medicaid Services drew the 2014 open enrollment period toward a close with a flourish, releasing a series of guidance documents regarding opportunities that remain to enroll in coverage after the open enrollment period. The Department of the Treasury also released a guidance, a fact sheet, and letter addressing the situation of domestic violence victims who apply for premium tax credits but are unable to file taxes jointly, as generally required by the ACA.

Extended Enrollment Opportunities

The first CMS Guidance addresses the situation of people waiting “in line” for enrollment in the federally facilitated marketplace or exchange (FFM) on the final day of the 2014 open enrollment period, March 31. CMS anticipates that application traffic will be very high during the last week of open enrollment—over a million individuals visited on Monday, March 24. Individuals who applied by March 31, but did not complete their application, will be allowed to complete it—effectively given a special enrollment period to finish enrolling. CMS does not specify how long consumers may continue to do so beyond saying that they will have a “limited amount of additional time.” If applicants pay their first month’s premium by the time required by their insurer, they will be able to being coverage on May 1.

Paper applications that are received by April 7, or that were filed by March 31 but uncompleted because they were pending submission or review of documents, can also be approved for coverage beginning May 1 for consumers who choose a plan by April 30. Consumers who take advantage of this special enrollment period may also apply for a hardship exemption to avoid paying the individual responsibility tax for the additional month they are uninsured. The guidance applies only to the FFM, but it clarifies that state based marketplaces can apply similar policies.

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The ACA’s Contraception Coverage Mandate: Constitutional Limits On Exempting Employers

March 20th, 2014
by John Kraemer

On March 25, the Supreme Court will hear oral arguments over whether the Affordable Care Act’s (ACA’s) requirement that for-profit companies cover contraception—commonly called the contraception mandate—is legal.  Thus far, most public debate, scholarship, and litigation over the ACA’s contraception mandate has focused on two questions: whether for-profit corporations are entitled to religious protections, and does the mandate so intrude on religious practice that the law should accommodate companies’ beliefs through an exemption from the law?

There is, however, a different, equally important question: to what extent does the law permit religious accommodations to impose health burdens on third parties?  Failing to accommodate owners’ religious objections to the contraception mandate will impede their sincere religious beliefs, but accommodating them will limit workers’ access to contraception and increase the frequency of unintended pregnancy and abortion.

Ours is a society that, in embracing Constitutional rule of law, protects the right to worship freely (or not at all) and simultaneously seeks to govern collectively for the public’s health and welfare.  Exemptions from the contraception coverage mandate place these values in tension.  When, however, the law creates religious accommodations that subordinate third parties’ important interests to someone else’s religious beliefs, the law violates the Constitution’s Establishment Clause and should be invalidated. 

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The New Nutrition Facts Panel: Public Health Improvement Or Distraction?

March 19th, 2014
by Brian Elbel

Last month, the United States Food and Drug Administration announced long awaited proposed changes to the Nutrition Facts Panel (NFP), the nutrition information found on the back of packaged foods and beverages. The NFP is required to be on all packaged foods, with significant regulations on what is presented and how the information can be presented. Initially mandated in the first Bush Administration, the NFP offers a clear and consistent manner of presenting nutrition information—at least for those with the time and nutrition knowledge to benefit from the information.

The key questions behind the proposed changes are: will they be successful in altering consumer behavior, how might they be improved, and what overall role might they play in obesity prevention?

The NFP is clearly a source from which those already motivated and knowledgeable can easily access information and a base on which to build future approaches to addressing obesity. Put differently, this information will only work if people actively, directly choose to turn the package over, engage in information, and push past the many impulses pulling them towards the less healthy foods. The compelling nature of unhealthy foods means that individuals have to be particularly motivated, or the nutrition information has to be particularly compelling.

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Implementing Health Reform: Exchange And Insurance Market Standards Proposed Rule

March 16th, 2014
by Timothy Jost

On March 14, 2014, the Department of Health and Human Services, Centers for Medicare and Medicaid Services, published a proposed rule titled “Patient Protection and Affordable Care Act: Exchange and Insurance Market Standards.” The rule was accompanied by a bulletin on product discontinuance, one of the issues addressed by the rule. The proposed rule was one of a number of March 14 ACA issuances, the rest of which were addressed in earlier posts.

The Exchange and Insurance Market Standards proposed rule addresses a grab bag of issues that all relate loosely to exchanges or to the ACA’s insurance market reforms. Some of these — like QHP quality reporting — are issues that HHS had failed to address earlier because these issues did not rise to the urgency of other issues that needed to be resolved immediately for health reform to proceed. Others — like regulation of navigators — are issues that had been addressed earlier, but where it has become apparent that mid-course corrections are necessary. Still others, like modifications in the premium stabilization programs, are issues that have arisen in the unfolding course of events as problems developed in implementation.

Most of the issues are largely unrelated to one another; thus this description of the rule will proceed like the rule itself, addressing seriatim a catalog of largely unrelated issues. (A list of topics addressed by the rule is included in a note at the end of this post.)

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Ethical Dilemmas In Prison And Jail Health Care

March 10th, 2014
by Nancy Dubler

Editor’s note: This post is published in conjunction with the March issue of Health Affairs, which features a cluster of articles on jails and health.

Prison and jail health care, despite occasional pockets of inspiration, provided by programs affiliated with academic institutions, is an arena of endless ethical conflict in which health care providers must negotiate relentlessly with prison officials to provide necessary and decent care.  The “right to health care” articulated by the Supreme Court pre-ordained these ongoing tensions.  The court reasoned that to place persons in prison or jail, where they could not secure their own care, and then to fail to provide that care, could result in precisely the pain and suffering prohibited by the Eighth Amendment to the Constitution.

Good reasoning was followed by a deeply flawed articulation of the “right” that defines the medical care entitlement as care provided to inmates without “deliberate indifference to their serious medical needs.” By forging a standard which was, and remains, unique in medicine and health care delivery — designed to avoid intruding on state malpractice litigation regarding adequacy of practice and standards of care — the court guaranteed that dispute would surround delivery.  That first framing, which did not establish a right to “standard of care” or to care delivered according to a “community standard,” set the stage for endless ethical and legal conflict.

The Eighth Amendment’s deliberate indifference standard, forbidding cruel and unusual punishment, presents a relatively demanding standard for proving liabil­ity.  The Eighth Amendment, as interpreted by the federal courts, does not render prison officials or staff liable in federal cases for malpractice or accidents, nor does it resolve inter-professional disputes — or patient-professional disputes — about the best choice of treatment. It does require, however, that sufficient resources be made available to implement three basic rights: the right to access to care, the right to care that is ordered, and the right to a professional medical judgment.

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Implementing Health Reform: Basic Health Program And More ACA Litigation Results

March 10th, 2014
by Timothy Jost

On March 7, 2014, the Centers for Medicare and Medicaid Services of the Department of Health and Human Services released its final rule on the Basic Health Program (BHP). This rule finalizes a rule proposed by CMS in September of 2013, which was covered here. CMS also released its methodology for funding the BHP for 2015. Finally, CMS published, along with the Departments of Labor and Treasury, a request for information regarding the implementation of a provision of the Affordable Care Act that prohibits insurers from discriminating against providers based on their licensure or certification status.

This post will discuss these issuances, as well as a decision by the United States Court of Appeals for the District of Columbia rejecting yet one more challenge to the ACA.

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How Will California’s Penal System Respond To The ‘Perfect Storm’?

March 7th, 2014
by Jonathan Simon

Editor’s note: In addition to Jonathan Simon (photo and bio above), this post is coauthored by Daniel Mistak, a graduate student in Jurisprudence and Social Policy at the University of California, Berkeley. He previously earned his juris doctorate from University of California, Berkeley, School of Law. Prior to law school he attained a master’s degree in philosophy, with a focus in bio-ethics, and a master’s degree in genetics and cell biology. This post is published in conjunction with the March issue of Health Affairs, which features a cluster of articles on jails and health.

California’s system of incarceration is in the midst of sweeping changes. Recent shifts in state and federal law, motivated and bolstered by Supreme Court decisions, have created a perfect storm for institutional change. But as with any storm, it can be difficult to predict what can be done to prepare and what will be left when the clouds clear.

What caused this perfect storm in California? In 2011, the Supreme Court found in Brown v. Plata that California’s prisons could not meet the mental and physical health needs of the inmates because of prison overcrowding. To avoid violating the VIII Amendment’s prohibition on cruel and unusual punishment, the Court mandated that California prisons decrease their over-crowded prison populations to 137.5 percent of their design capacity within two years. Governor Jerry Brown signed into law Assembly Bill 109 (‘Realignment’) to facilitate this transition.

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Physicians In Congress: A Prescription For Better Health Policy?

March 5th, 2014
by Brian Powers and Sachin Jain

Editor’s note: This post is also authored by Sachin H. Jain of Harvard Medical School and Boston VA Medical Center.

Physicians in Congress are on the rise. From 1960 to 2004, only 25 of the 2196 members of Congress were physicians. During an era that brought such fundamental changes to health policy as the creation of Medicare and Medicaid, physicians were disproportionately less likely to hold congressional office than their counterparts in law (979) and in business (298). In recent years, the ranks of physician-representatives have swelled—twenty physicians currently hold seats in the 113th Congress.

This surge in membership comes at a crucial time, for health care has become a defining issue in American politics. The passage of the Affordable Care Act has divided the nation and brought party relations to a standstill. In the 2012 presidential election, health care ranked as the second most important issue to voters, its highest level in twenty years. And with health care spending projected to be the largest long-term contributor to national debt, the nation’s health and economic future depends on sound health policy. What role can this new cadre of physician-representatives play in shaping this process?

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The ACA And People With HIV: The ACA’s Impact And The Implications Of State Choices

March 3rd, 2014
by Jennifer Kates and Rachel Garfield

Editor’s note: This post is also co-authored by Rachel Garfield, a senior researcher and associate director at the Kaiser Commission on Medicaid and the Uninsured, the largest operating program of the Henry J. Kaiser Family Foundation.

Among the groups that stand to benefit from the Affordable Care Act (ACA) are people living with HIV, a population with significant and high-cost health care needs but one that has historically faced barriers to coverage and care.  While several provisions of the ACA are of particular importance for this population, two are expected to have the most far reaching effects on coverage – the expansion of Medicaid eligibility to include most Americans with incomes up to 138 percent of the federal poverty level (FPL) (although the Supreme Court’s 2012 decision effectively made the Medicaid expansion optional for states) and the creation of new Health Insurance Marketplaces where individuals can purchase private coverage, including subsidized coverage for those with lower incomes.  Others include an end to pre-existing condition exclusions, a ban on premium rate setting based on health status, and an end to annual and lifetime caps on coverage, all of which posed barriers for people with HIV prior to the ACA.

Despite the importance of these changes for people with HIV, little has been known about how many are estimated to gain new coverage.  While there are more people living with HIV in the U.S. than ever before (an estimated 1.1 million), almost two-thirds are not yet in regular care, either because they have not yet been diagnosed or have not been retained in care, thus challenging efforts to develop nationally representative estimates of the population of people with HIV in the U.S. by income and coverage.  Indeed, a recent Institute of Medicine study concluded that no single data source was yet available that could establish baseline estimates of coverage before 2014; instead, the Committee recommended that multiple data sources should be considered.

Examining The Population Of Americans With HIV/AIDS

Two new studies, each using different data sources, shed light on this question — our study from the Kaiser Family Foundation, conducted in collaboration with researchers at CDC, and Snider et. al’s analysis published in the March issue of Health Affairs.  While the two studies use different data sources and methodological approaches, they arrive at a similar conclusion: significant shares of people with HIV stand to benefit from Medicaid expansion (as well as subsidized coverage in Health Insurance Marketplaces), but state choices about Medicaid expansion will affect the ACA’s reach for this population.  As such, both studies highlight the continued importance of the Ryan White HIV/AIDS Program (Ryan White Program), first created in 1990, which has become a critical safety net for people with HIV who have no coverage or face limits in their coverage.

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How Many Nongroup Policies Were Canceled? Estimates From December 2013

March 3rd, 2014
by Lisa Clemans-Cope and Nathaniel Anderson

Editor’s note: This post is co-authored by Lisa Clemans-Cope and Nathaniel Anderson of the Urban Institute.

Last fall, news reports focused on consumer discontent over “cancellation” notices of health insurance policies that did not meet the new minimum standards under the Affordable Care Act (ACA), but it’s difficult to determine exactly how many consumers were affected.  Starting in 2014, most non-group health insurance plans and small employer group plans must offer a minimum set of benefits and consumer protections—for example, plans must not exclude coverage of pre-existing conditions and must offer minimal coverage of certain health benefits such as prescription drugs.

Prior to reform, the nongroup health insurance market suffered from a number of shortcomings, such as benefit exclusions, denials of coverage, premiums that varied greatly by health status, benefit limits, high cost-sharing, and lack of information on plan benefits and design prior to purchase. The new minimum benefit standards and consumer protections work together with additional insurance market provisions that took effect in 2010, expansions of Medicaid eligibility, and income-based subsidies in the new health insurance Marketplaces. Together, these new reforms expanded coverage options for millions of people, and raised minimum benefits and consumer protections for millions more.

Among nongroup plans offered in 2013 that were not compliant with ACA standards, some were amended, some were cancelled, and some were granted “grandfathered” status and are not required to comply with the new rules if enrollees were holding the policy continuously before and since the passage of the ACA and insurers did not substantially change benefits or costs. Some insurers, however, chose to cancel policies that would otherwise have been legally grandfathered for business reasons, such as low enrollment or an enrollee group with high average cost, leading to unsustainable premiums. In fact, the non-group market has historically been highly volatile, with just 17 percent retaining coverage for more than two years.

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Open Payments: A Matter Of Maintaining Trust

February 27th, 2014
by Anita Griner

For decades, it’s been no secret that some physicians have financial relationships with health care manufacturing companies. For example, a pharmaceutical firm might fund a cardiologist at an academic medical center to research an experimental medication for lowering cholesterol. Or, an orthopedic surgeon might receive a consulting fee from a medical device manufacturer for counsel about an artificial hip.

These widespread collaborations can involve gifts, meals, speaking fees, travel support, or payment for research activities. The good news is that these joint efforts have led to the discovery, design, and development of landmark drugs and life-saving devices, as well as numerous other major therapeutic inventions and innovations.

However, these commonplace transactions between physicians and the makers of drugs, devices, biological and medical supplies, or group purchasing organizations (GPOs) also cause considerable controversy. That’s because such payments from manufacturers to providers sometimes introduce conflicts of interest. Improper influence over research, education, and clinical decision-making can be exerted. Clinical integrity and patient care can be compromised. More explicitly, a physician may tout one drug over another during a continuing education session, primarily because he happens to be receiving a grant from its manufacturer.

Among consumers’ most serious concerns is that such financial relationships have always occurred privately, known only to the parties directly involved while the public remained in the dark.

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Implementing Health Reform: Another Court Upholds Federal Exchange Premium Tax Credits

February 20th, 2014
by Timothy Jost

On February 18, 2014, Judge James Spencer of the United States District Court for the Eastern District of Virginia became the second federal judge to reject the legal theory that was supposed to “drive a stake through the heart of Obamacare.” Several lawsuits have been brought by Affordable Care Act opponents claiming that the federal exchange, which now exists in 34 states, lacks legal authority to issue premium tax credits and that an Internal Revenue Service rule authorizing the federal exchange to do so is illegal.

In January, Judge Paul Friedman of the District Court for the District of Columbia threw out a lawsuit, Halbig v. Sebelius, arguing this theory. Judge Spencer, in dismissing King v. Sebelius, followed Judge Friedman’s lead, but found additional reasons for rejecting the challenger’s arguments.

The challenge is based on the wording of two phrases in a section of the ACA that addresses the calculation of the amount of premium tax credits. The section refers to calculating the amount of the tax credit taking into consideration the premium of a qualified health plan in which an individual is enrolled “through an Exchange established by the State under [section] 1311 of the” ACA. The plaintiffs in these cases claim that this means that premium tax credits are only available through state, and not federal, exchanges. Plaintiffs claim that Congress included this provision because it had a strong preference for state exchanges and wanted to force states to establish exchanges by denying premium tax credits to the residents of states that failed to do so.

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Implementing Health Reform: Regulatory Clarification And Back-End Work Continues

February 10th, 2014
by Timothy Jost

It should not be surprising that a program as complicated as the Affordable Care Act would require a great deal of tinkering as its implementation proceeds.  This is quite obviously true with respect to the technical processes through which insurance coverage is effectuated — the website and the state equivalents.  It is, however, still […]

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First Steps On A Long Road: Three Key Findings From ACA’s Early Enrollment Numbers

February 7th, 2014
by Chapin White and Christine Eibner

Although the new coverage options in the Affordable Care Act (ACA) took effect on January 1, 2014, enrollment in its health insurance exchanges, or marketplaces, began several months ago. The federal government recently released enrollment figures through December 2013 for Medicaid and the Health Insurance Marketplaces. These numbers offer some early insights into how the ACA is playing out. Three key findings from our examination of the numbers follow here.

Getting to Universal Coverage Will be a Long Process

The guiding vision behind the ACA is for everyone in the U.S. to be enrolled in adequate health care coverage. The way most high-income countries achieve that goal is to confer health care coverage, more or less automatically, on all legal residents. The premise behind the ACA is different. The ACA is designed to make adequate coverage available and affordable, but individuals still have to “opt in,” meaning they have to do something voluntarily to enroll.

Based on RAND’s COMPARE model, we estimate that there were close to 50 million uninsured legal residents in the U.S. in 2013; these are the ACA’s target population. Today, the vast majority of those 50 million individuals are required to obtain coverage, and about two-thirds of them—32 million—are eligible for either free coverage through Medicaid or a tax-credit subsidized Marketplace plan.

How is the ACA’s voluntary opt-in approach working out? As of the end of December 2013, 7.7 million individuals had gone through the process of applying for Marketplace coverage, 2.1 million individuals had actually enrolled in a private plan, and 1.6 million had been determined by the Marketplaces to be eligible for free Medicaid coverage. Put another way, as of January 1 the ACA had put roughly a 4 million-person dent in a 50 million-person problem.

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Implementing Health Reform: Court Blocks Missouri Restrictions On ACA Navigators

January 23rd, 2014
by Timothy Jost

In a major victory for the ACA, on January 23, 2014, Judge Ortie Smith of the federal court for the Western District of Missouri, on January 23, 2014, enjoined the Missouri Department of Insurance from enforcing a Missouri law that requires federal navigators, certified application counselors (CACs), and counselor-designated organizations to obtain a state license and limits their activities.

State laws imposing licensure requirements on navigators and CACs and restricting their activities have been enacted by at least seventeen states. The enactment of these laws, almost all of which have been adopted by Republican-dominated states, appear to be driven by a combination of concern for consumer protection, political opposition to the Affordable Care Act, and lobbying by agent and broker groups trying to protect their turf from competition. The laws require navigators and other counselors and assisters authorized under the auspices of the ACA to obtain state licenses, impose licensure obligations beyond those imposed by federal law, and limit what navigators and assisters can say to consumers whom they are assisting.

The Affordable Care Act creates a navigator program to educate consumers about the availability of qualified health plans, to distribute fair and impartial information about QHPs and about the availability of premium tax credits and cost-sharing reduction payments, and to facilitate enrollment in QHPs. The Department of Health and Human Services has awarded grants to non-profit organizations to serve as navigators in federal exchange states. State exchanges have also established navigator programs. The federal regulations additionally recognize CACs, non-profit or governmental organizations such as community health centers, hospitals, or social service agencies trained to assist consumers to enroll in QHPs through the exchanges. The federal regulations impose educational and certification requirements on individuals who wish to qualify to serve as navigators or CACs.

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Implementing Health Reform: Court Rules That Tax Credits Are Available Through Federal Exchange

January 15th, 2014
by Timothy Jost

January 17 update: Resources on interim payment process for insurers and other subjects. On January 9 and again on January 16, 2014, HHS posted a number of frequently asked questions, about 50 in total, on its website.  To find these, log in, (register first if you haven’t already) at, click on the icon […]

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