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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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Analysis Of Medicare Spending Slowdown Leads Health Affairs Blog October Most-Read List


November 17th, 2014

Loren Adler and Adam Rosenberg’s examination of the causes of slower Medicare spending growth was the most-read Health Affairs Blog post in October. Their post was followed by Jeff Goldsmith’s interview with former Kaiser Permanente CEO George Halvorson.

Next on the top-ten list was J. Stephen Morrison’s look at the US response to Ebola and the role of Centers for Disease Control and Prevention Director Tom Frieden, followed by Tim Jost’s post on reference pricing and network adequacy.

The full list is below:

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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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Implementing Health Reform: Setting The Stage For 2015 Open Enrollment


November 16th, 2014

On November 15, 2014, the Affordable Care Act marketplaces reopened for 2015 enrollment, the second year of ACA coverage.  On November 14, the Centers for Medicare and Medicaid Services and the Office of Personnel Management released guidance and reports laying the groundwork for the second year.  This post covers these and notes briefly a couple of ACA court decisions that also came down on November 14.

Plan data release.  CMS released a number of data files containing information on plans available on the marketplaces for 2015 and their rates.  First, the release includes “landscape files” including plans available by county along with premium and cost-sharing data for selected scenarios and services for the 2015 plan year for the federally facilitated marketplace and federally facilitated SHOP.

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Medicaid At 50: From Exclusion To Expansion To Universality


November 14th, 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.

For almost five decades, Medicaid has been a safety net with gaping holes. Medicaid has provided invaluable health care access for the “deserving poor”—the impoverished blind, disabled, children, pregnant women, and elderly—but they only comprise approximately 40 percent of the nation’s poor. The Patient Protection and Affordable Care Act (ACA), as part of its comprehensive insurance coverage architecture, rendered all Americans earning up to 138 percent of the federal poverty level (FPL) eligible for Medicaid. Through the effort to “provide everybody … some basic security when it comes to their health care,” the ACA adopted a universal approach to health care access. Universality is a fundamentally different philosophical approach in American health care, and an important progression away from the stigmatizing rhetoric of the “deserving poor.”

The Supreme Court nearly thwarted the possibility of universality by holding the Medicaid expansion unduly coercive and rendering expansion optional for the states. Ever since, states have been exercising that option, deciding whether to expand in a highly dynamic dialogue that has occurred both intrastate and extra-state with the Secretary of the Department of Health and Human Services (HHS). This dialogue has resulted in four waves of Medicaid expansion, each of which has exhibited greater boldness on the part of the states in their proposals to HHS, and greater flexibility on the part of HHS in accepting state ideas for expansion. On a spectrum of federalism, the waves move from cooperation to assertions of state sovereignty. But, Medicaid’s new universality provides an absolute backstop for HHS in these negotiations, a point at which federal policy should not accommodate the rent-seeking behavior of the states.

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Risk And Reform Of Long-Term Care


November 14th, 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 50th Anniversary of Medicare and Medicaid offers an opportunity to reflect on how U.S. social policy has conceived of the problem of long-term care.

Social insurance programs aim to create greater security—typically financial security—for American families (See Note 1). Programs for long-term care, however, have had mixed results. The most recent attempt at reform, which Ted Kennedy ushered through as a part of the Patient Protection and Affordable Care Act (ACA), called the CLASS Act, was actuarially unsound and later repealed. Medicare and especially Medicaid, the two primary government programs to address long-term care needs, are criticized for failing to meet the needs of people with a disability or illness, who need long-term services or supports. These critiques are valid.

Even more troublesome, however, long-term care policy, especially in its most recent evolution toward home-based care, has intensified a second type of insecurity for Americans. This insecurity arises when someone becomes responsible for the long-term care of a loved one. In a longer forthcoming article, I argue that this insecurity—which I call “next-friend risk”—poses a serious threat to Americans and needs to be addressed. (I borrow the phrase next friend from a legal term for a person who in litigation represents someone with a disability who is otherwise unable to represent him or herself. Although not a legal guardian, the next friend protects the interests of an incompetent person.)

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New Health Policy Brief: The Family Glitch


November 10th, 2014

A new health policy brief from Health Affairs and the Robert Wood Johnson Foundation (RWJF) looks at the Affordable Care Act’s (ACA’s) so-called family glitch. Low-to-moderate-income families are eligible for a subsidy to purchase health insurance on the Marketplace if the cost of health coverage through their employers is more than 9.5 percent of their household income.

However, this formula is based on individual-only coverage and does not account for the higher cost of a family insurance plan. If the family glitch is not fixed, the path to affordable insurance for many spouses and children could be blocked—and children could be even further impacted if Congress fails to extend funding for the Children’s Health Insurance Program (CHIP) after the current appropriation ends in September 2015, which the brief also explains.

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Implementing Health Reform: Supreme Court Will Review Tax Credits In Federal Exchanges


November 7th, 2014

On November 7, 2014, the Supreme Court granted certiorari (review) in King v. Burwell, one of the cases involving the question of whether federally-facilitated marketplaces can grant premium tax credits.  The Fourth Circuit in King had upheld the Internal Revenue Service rule allowing FFMs to grant premium tax credits.  A panel of the District of Columbia Circuit had decided the same day that only state-operated exchanges could grant tax credits; however, that decision was vacated by the D.C. Circuit when it decided to rehear the case as a whole, so at the time the Supreme Court accepted certiorari, King was the only circuit court decision in effect, and that upholding the rule.

The challenge to the IRS rule is based on the wording of the provision of the ACA that authorizes premium tax credits, which refers to enrollment “in through an Exchange established by the State.”  The plaintiffs in King argue that this means that only state-operated exchanges can grant premium tax credits.

The government responds that this is an incorrect reading of the statute, which recognizes FFMs as the state-established exchange in states that elect not to establish a state exchange.  This is certainly the way that the members of Congress who wrote the legislation and the states that elected not to operate their own exchange understood the legislation.

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Health Care Policy After The Mid-Term Elections


November 7th, 2014

As President Obama said in his post-election news conference, Republicans had a good night on November 4. They increased their majority in the House to a level not seen since the 1920s and may hold as many as 250 seats in the lower chamber. In the Senate, Republicans defeated at least three incumbent Democratic Senators, and are likely to defeat two more when all of the voting and counting is over.

The most likely scenario is that the GOP will hold 54 seats in the Senate come January — an increase of nine seats from the current Congress. It is noteworthy that half of the Democratic Senators who voted to pass the Affordable Care Act (ACA) nearly five years ago will no longer be in the Senate in 2015. Despite some commentary to the contrary, the ACA was a big issue in the election. To a person, the successful GOP Senate candidates ran strongly against the ACA. In the middle of October, anti-ACA ads were among the most frequently-aired political advertisements from Republican Senate candidates. By and large, these candidates won their races.

The conventional wisdom is that the ACA, now heading into its second year of full-scale implementation, cannot be rolled back in any substantial way at this point. That’s certainly the view of major corporate players and the health care industry. But it is decidedly not the view of the newly-elected Republican members of the House and Senate, or their constituents. They believe voters sent them to Washington to do their best to push back against the perceived excesses of the ACA and to begin replacing it with a reform plan that is less expensive, less damaging to the economy, and less reliant on federal regulation and control.

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Tax Filing And The ACA: Helping Americans Meet The Challenge


November 7th, 2014

Tim Jost’s post of September 21, 2014 expressed concern about the problems that Americans who are uninsured or who have received or qualify for premium tax credits will face in filing their taxes for 2014.  Those who are not otherwise insured and who wish to claim an exemption from the shared responsibility penalty will have to file tax form 8965.  Those who received advance premium tax credits during 2014 will have to file a form 8962, as will those who did not receive advance premium tax credits but who wish to claim premium tax credits on their tax return.  Tax filers who fail to reconcile their tax credits for 2014 cannot claim tax credits for subsequent years.

Individuals who did not have coverage at the beginning of 2014, but purchased coverage at some point in the year through the marketplaces, may need to file both forms.  For example, victims of domestic violence or spousal abandonment were granted a special enrollment period part of the way through 2014 and will have to file an 8965 for the months they were uninsured before they enrolled and an 8962 for months after they enrolled.

This post offers suggestions as to how the Internal Revenue Service and Centers for Medicare and Medicaid Services, the two agencies that oversee the shared responsibility and premium tax credit programs, might mitigate the problems that tax filers may face in filing their taxes for 2014.

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Social Insurance Is Missing A Piece: Medicare, Medicaid, And Long-term Care


November 6th, 2014

Editor’s note: This is the first of several periodic posts stemming from presentations to be given at “The Law of Medicare and Medicaid at Fifty,” a conference that will be held at Yale Law School on November 6 and 7. The issues covered in this post and in Professor Feder’s presentation at the conference will be more fully treated in Feder J. “The Missing Piece:  Medicare, Medicaid and Long-Term Care,” in Cohen AB, Colby DC, Wailoo KA, Zelizer JE, eds. Medicare and Medicaid at 50: America’s Entitlement Programs in the Age of Affordable Care. New York: Oxford, 2015.

Medicare and Medicaid are partners in providing health insurance protection to older people and people with disabilities. But when it comes to helping the very same people with long-term care—assistance with the basic tasks of daily life (like bathing, eating and toileting)—no such partnership exists.  Instead, there’s a gaping hole in protection that leaves people who need care, along with their families, at risk of catastrophe.

That hole is not an accident.  From Medicare’s inception, long-term care was explicitly excluded from its social insurance benefits, despite the close tie of many long-term care needs to medical conditions.  With some short-lived lapses, Medicare rules have restricted the program’s benefits to avoid financing long-term care, even as it has overpaid long-term care providers for medically-related “post-acute” services. Ironically, Medicare has fueled growth in expenditures on long-term care providers without actually covering long-term care.

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The Law Of Medicare And Medicaid At Fifty


November 4th, 2014

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

This post introduces an online symposium in connection with The Law of Medicare and Medicaid at 50, an upcoming interdisciplinary conference at Yale Law School.  Many thanks to Health Affairs for its co-sponsorship of the conference and for this opportunity to preview some of the work to be presented.

Why focus on the law of Medicare and Medicaid?  These two programs are almost always analyzed from a policy perspective, but one of the most significant changes that the 1965 legislation wrought was bringing two major federal statutes—and, with them,  the three branches of the federal government—squarely into the center of  health care and regulation.  To be sure, Congress had passed laws related to health prior to 1965, but until Medicare and Medicaid, most health policy was made at the local level, by state courts and state governments, and by the medical profession itself.

Medicare and Medicaid brought not only Congress, but the Supreme Court and the rest of the lower federal courts into the picture. It also made the federal administrative apparatus—federal agencies ranging from Health and Human Services, to Treasury, to the Department of Justice—central players in the world of health policy and enforcement.  Nevertheless, amidst the thousands of pages that have been written about the two programs, there has been relatively little reflection on how the distinct features of law—and federal law in particular—have affected the programs’ development and successes.

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The United States’ Misguided Self-Interest On Ebola


October 31st, 2014

The Ebola epidemic in West Africa is spiraling out of control. The international community allowed a manageable outbreak to mushroom into a health and humanitarian crisis. The World Health Organization (WHO) has been enfeebled and largely sidelined. Belatedly, the United States sent military troops into Liberia and spearheaded a United Nations Security Council resolution. Yet since isolated Ebola cases have appeared on our shores, the US has begun to look inward, at risk of falling into a trap that I will call “misguided self-interest.”

While the West African epidemic rages, the US delayed significant action until long after the unprecedented nature of the Ebola epidemic became clear, and even now the response is incommensurate with the massive need. Now we are transferring our gaze from the real crisis and headed on an insular journey.

I grant the premise that a country’s first responsibility is to protect its inhabitants. But calls for a travel ban from the region and newly announced state quarantine policies that would ensnare travelers from affected countries appear selfish. To put it in perspective, the US has experienced only a few domestically diagnosed cases, with an exceedingly low risk of an outbreak.

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North Carolina Dental Board v. FTC: A Bright Line On Whiter Teeth?


October 30th, 2014

On October 14, 2014, the United States Supreme Court heard oral arguments in North Carolina Board of Dental Examiners vs. Federal Trade Commission.  The case does not involve the Affordable Care Act, but it goes to the heart of the professional self-regulatory paradigm that has governed the U.S. health care system for more than a century.  The specific legal question under review is the standard for determining when a state professional licensing board’s activities are subject to scrutiny for anticompetitive effect under the federal antitrust laws.

Antitrust law applies to private anticompetitive conduct.  Congress did not intend to interfere with state regulation that limits or even eliminates competitions.  As long as states do so using public agencies and officials, they are on safe ground.  If a state empowers private parties to administer such regulation, however, it not only must “clearly articulate” its intent to diminish competition, but also must “actively supervise” the conduct of the private parties.  In previous cases, the Supreme Court developed and elaborated this two-part test, which is called the “state action doctrine.”

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Tax-Exempt Status For Nonprofit Hospitals Under The ACA: Where Are The Final Treasury/IRS Rules?


October 23rd, 2014

Months have now stretched into years, and there still remains no sign of final Treasury/IRS regulations interpreting the Affordable Care Act (ACA)’s provisions covering the expanded obligations of nonprofit hospitals that seek tax-exempt status under §501(c)(3) of the Internal Revenue Code.

The ACA amendments do not depend on formal agency policy to take effect. Nonetheless, Congress directed the Treasury Secretary to issue regulations and guidance necessary to carry out the reforms (26 U.S.C. §501(r)(7)). To this end, two important sets of proposed rules were issued: the first in June, 2012; and the second, in April 2013. While an informative IRS website lists various proposed rules and guidelines important to nonprofit hospitals, final rules seem to have performed a disappearing act.

Apparently recognizing the problems created by its delays, the agency has gone so far as to issue a special Notice letting nonprofit hospitals (and presumably the public) know that they can rely on its proposed rules. But this assurance overlooks the fact that the proposed rules themselves contained crucial areas in which final agency policy has not yet been adopted.

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Health Affairs Web First: Noneconomic Damage Caps Reduced Medical Malpractice Payments, With Varied Effects


October 22nd, 2014

With the 2014 election weeks away, a provision of California’s Proposition 46, raising the cap on medical malpractice payments for noneconomic damages, has been in the news. This provision would increase the payment cap from $250,000 to $1.1 million. A new study, being released today by Health Affairs as a Web First, sheds light on the potential effect of this proposition.

Study authors Seth A. Seabury, Eric Helland, and Anupam B. Jena looked at the impact of medical malpractice reforms on the average size of malpractice payments in several physician specialties and compared how the effects differed according to the size of the cap. It found that caps reduced the average payments by 15 percent compared to no cap—and a $250,000 cap reduced average payments by 20 percent.

On the other hand, a less restrictive $500,000 cap had no significant effect. The authors also found specialty variations, with the largest impact involving pediatricians and the smallest for claims of surgical subspecialties and ophthalmologists.

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Implementing Health Reform: The Qualified Health Plan Federal Exchange Participation Agreement And More


October 21st, 2014

CMS continues to put the pieces into place that are needed for the launch of the 2015 coverage year.  On October 16, 2014, the Centers for Medicare and Medicaid Services released at its REGTAP.info website the certification agreement and privacy and security agreement that qualified health plan (QHP) insurers must sign with CMS to access the federally facilitated exchange (FFE), the federally facilitated SHOP (FF-SHOP), and CMS Data Services Hub.  The agreement focuses primarily on obligations that the QHP insurer undertakes to protect personally identifiable information and to ensure secure communications with CMS, although it also addresses the effective date and termination of the agreement and a few other issues.  Most of the terms of the agreement are unremarkable, and this post will only comment on a few.

QHP insurers undertake under the agreement to protect personally identifiable information and to ensure secure communications with CMS in conformity with applicable laws, regulations, and standards.  They must also ensure that their contractors and downstream entities comply with these requirements.  QHP insurers agree to report any personally identifiable information incidents or breaches to CMS within 72 to 96 hours.  This is a far cry from the one-hour breach reporting requirement proposed by CMS last year but never finalized, but perhaps recognizes the difficult of identifying and assessing a security breach.

The agreement expressly recognizes that QHP insurers have developed their products based on the assumption that advance premium tax credits and cost-sharing reduction payments will be available through the marketplace and that QHP insurers could have cause to terminate the agreement if this assumption ceases to be valid.  This could be interpreted as a reference to the Halbig/King litigation which currently threatens the availability of tax credits and cost-sharing reduction payments through the FFE, but could also have been included in recognition of the likely Republican takeover of the Senate and the possibility that the Republicans may accomplish through budget reconciliation or otherwise their longstanding goal of repealing the ACA.  As the agreement is renewable from year to year, this clause may contemplate contingencies in the indefinite as well as the near future

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Health Policy Brief: The Ninety-Day Grace Period


October 17th, 2014

A new Health Policy Brief from Health Affairs and the Robert Wood Johnson Foundation (RWJF) examines the ninety-day grace period, a provision of the Affordable Care Act (ACA). Of the eight million people who enrolled in the insurance Marketplaces between October 2013 and March 2014, 85 percent received an advance premium tax credit. This provision allows a three-month grace period for nonpayment of insurance premiums for this group of consumers–and this group only–if they have previously paid at least one month’s full premium in that benefit year.

This grace period allows these new enrollees continuity of care, preventing them from shifting or “churning” in and out of coverage for nonpayment. Health care providers, however, have expressed concerns that this provision and the way the Centers for Medicare and Medicaid Services (CMS) has implemented it could expose them to considerable financial risk. This Health Policy Brief focuses on how this provision is being implemented and the concerns from the provider community.

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Implementing Health Reform: Judge Rules Against Premium Tax Credits In ACA Federal Exchanges (Updated)


September 30th, 2014

On September 30, 2014, Judge Ronald White of the United States District Court for the Eastern District of Oklahoma decided in Pruitt v. Burwell and Lew that the Affordable Care Act does not authorize the federally exchanges to issue premium tax credits.  He held that the Internal Revenue Service rule that provided the contrary is invalid.  Judge White’s decision followed the opinion of the majority of a panel of the District of Columbia circuit’s decision in Halbig v. Burwell, although the judgment in that case has been vacated pending a rehearing of the case by the full D.C. Circuit.  His decision was contrary to the decision of the Fourth Circuit Court of Appeals upholding the IRS rule in King v. Burwell.  The district courts in both Halbig and King had upheld the IRS rule.

The Pruitt case has a long and circuitous history.  It was originally filed by Oklahoma attorney general Scott Pruitt in 2011 as an individual mandate challenge.  After the Supreme Court upheld the individual mandate in 2012, Attorney General Pruitt amended his complaint to instead challenge the ability of the federally facilitated exchanges to issue premium tax credits.  In an earlier ruling, Judge White refused to allow Oklahoma to sue on its own behalf as a state (a ruling that Judge White did not change in this decision), but concluded that it might have standing to proceed as a large employer.

In his September 30 ruling, Judge White concluded that Oklahoma did in fact have standing to sue as a large employer.  Under the ACA’s employer responsibility provisions, a large employer that does not offer its employees affordable and adequate coverage can be subject to a tax penalty if one or more of its employees receives premium tax credits through the exchange.  If the federally facilitated exchange, which is the ACA exchange in Oklahoma, is unable to grant premium tax credits, Oklahoma, which is a large employer, cannot be subject to a penalty if it fails to offer coverage to its employees.

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Reference Pricing And Network Adequacy Standards: Conflict Or Concord?


September 18th, 2014

With benefit designs and enrollee cost-sharing increasingly standardized across health plans under the Affordable Care Act (ACA), one of the remaining levers plans have to differentiate themselves—and to control premiums—is the size of their provider networks. Regulators have been caught in a crossfire between advocates of narrow networks who say they promote quality and keep prices down, and those who feel narrow networks could constrain access to necessary services.

Unfortunately, recent federal guidance – addressing, among other related items, the issue of “reference pricing” — blurs the distinction between in-network and out-of-network providers and may make it more difficult for regulators and consumers to understand the effective “size” of a particular network.

This confusion could undermine the goal of improving transparency in consumers’ health care choices and make it difficult for consumers to use prices in choosing providers. More troubling, expanded use of “reference pricing” under the guidance could leave patients paying unexpectedly large out-of-pocket amounts for services provided by ostensibly in-network providers.

Below, we characterize reference pricing as a “sub-network” contracting strategy, and we describe some of the implications of reference pricing and the guidance for consumers, regulators, plans, and providers.

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