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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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Implementing Health Reform: Medicaid Eligibility, 2015 Navigator Grants, And FAQs (Updated)


September 8th, 2014

The decision of the full D.C. Circuit to review the panel decision in Halbig v. Burwell en banc was clearly the big Affordable Care Act (ACA) court decision of the first week in September, but a September 2 decision of the federal district court of the Middle District of Tennessee, Gordon v. Wilson, is also worthy of note.

The Medicaid law has long required state Medicaid programs to determine eligibility for Medicaid with “reasonable promptness,” defined by the regulations to mean within 90 days for applicants with disabilities and 45 days for everyone else. Applicants whose applications are not determined reasonably promptly are entitled by the Medicaid law and by the Due Process Clause of the Constitution to a fair hearing.

Medicaid Eligibility and Tennessee

Tennessee, like all states, was required by the ACA to begin calculating Medicaid eligibility for most recipients using modified adjusted gross income, or MAGI as of January 1, 2014. Tennessee attempted to establish a new computer system for doing this, but when it was not ready by January 1, Tennessee asked the federal exchange to determine Medicaid eligibility until it could get its system operational.

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Implementing Health Reform: DC Circuit Vacates Halbig Judgement, Grants Rehearing


September 5th, 2014

On September 4, 2014, the United States Court of Appeals for the District of Columbia granted a request by the government for a rehearing en banc (by the full court) in Halbig v. Burwell.  A divided three judge panel in the Halbig case had held on July 22, 2014 that an Internal Revenue Service rule allowing federally facilitated exchanges to grant premium tax credits was invalid. The D.C. Circuit’s decision to hear the case en banc vacated the panel’s judgement.

On the same day the Halbig panel decision was released, a three-judge panel of the Fourth Circuit Court of Appeals in Richmond, Virginia, had unanimously upheld the rule.  The conflicting decisions resulted in dueling petitions for review.  The plaintiffs in the King case petitioned the Supreme Court for certiorari, asking the Court to reverse the Fourth Circuit decision and hold the IRS rule invalid.  The government, on the other hand, petitioned the D.C. Circuit for a rehearing en banc.

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Implementing Health Reform: Exchange Eligibility Redeterminations Final Rule


September 3rd, 2014

On September 2, 2014, as Americans returned to their labors following the Labor Day holiday, the Department of Health and Human Services (HHS) released its Annual Eligibility Redeterminations for Exchange Participation and Insurance Affordability Programs final rule, the last rule that had to be in place for the 2015 open enrollment period. HHS also released a fact sheet describing the rule and forms for insurers to use when discontinuing or renewing an insurance product.

The rule finalizes a proposed rule issued in June, which I also analyzed on Health Affairs Blog. The proposed rule was accompanied by a guidance describing how the federally facilitated marketplaces (FFMs) intended to handle the 2015 redetermination process. That guidance is unchanged by the final rule.

Indeed, virtually nothing in the proposed rule is changed by the final rule. The preface to the rule offers some additional explanation of the reenrollment and redetermination process in response to the 36 comments received on the proposed rule, but virtually no changes were made other than minor wording changes.

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Implementing Health Reform: New Accommodations For Employers On Contraceptive Coverage


August 22nd, 2014

On August 22, 2014, the Departments of Health and Human Services, Labor, and Treasury released an interim final  and a proposed  rule providing for the accommodation of religious objections on the part of an employer or institution of higher learning to providing their employees or students coverage for contraceptive services.  A fact sheet on the rules was also released,   as was a notice on the revision of the form used to collect information on religious objections to contraceptive coverage.

The proposed rule, which applies to for-profit entities, is being issued in response to the Supreme Court’s decision in Burwell v. Hobby Lobby, which ruled that closely-held for-profit corporations may refuse to cover contraceptives for religious reasons.  The interim final rule responds to the Court’s interim order in Wheaton College v. Burwell  (and to 31 lower court injunctions) that released religious non-profit organizations from accommodations earlier proposed by HHS.

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Whither CHIP?


August 19th, 2014

In a day all but lost to Affordable Care Act prehistory, on November 7, 2009, the House of Representatives passed the Affordable Health Care for America Act. Among the bill’s many differences with its Senate counterpart, it would have allowed the Children’s Health Insurance Program (CHIP) to expire at the end of 2013, with children covered under that program enrolled in either Medicaid or commercial Exchange plans.

On December 24, the Senate passed the Patient Protection and Affordable Care Act (ACA). Their bill extended CHIP through fiscal year 2015 while, curiously, enhancing the Federal match rate for the program beyond that date and instituting a maintenance of effort (MOE) requirement for states to keep CHIP kids covered through 2019.

At the time, drafters of the respective chamber’s versions of health reform anticipated heading to conference to negotiate and resolve their differences, with the disposition of CHIP one of the top considerations.

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Implementing Health Reform: ACA-Related Litigation, Special Enrollment Periods, And Navigator Certification And Training (Updated)


August 13th, 2014

Two federal district courts have issued decisions in recent days in litigation relating to the Affordable Care Act. This post will analyze those cases as well as describe two new special enrollment periods recognized by the Centers for Medicare and Medicaid Services (CMS) in guidance issued on August 4, 2014.

A decision on motion to dismiss Indiana case regarding premium tax credits in the federally facilitated exchange.  First, on August 12, 2014, Judge William T. Lawrence of the United States District Court for the Southern District of Indiana issued an opinion in Indiana v. the IRS, one of the cases challenging the legality of the Internal Revenue Service rule recognizing the issuance of premium tax credits through the federal exchanges. There are currently four cases raising this issue pending in federal courts in Oklahoma, Indiana, Virginia, and the District of Columbia.

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Implementing Health Reform: Transferring Information Among The Exchanges, The IRS, And Taxpayers


August 8th, 2014

For better or worse, Congress decided to use our tax system and the Internal Revenue Service to operationalize two of the most important features of the Affordable Care Act (ACA): the premium tax credits that make coverage affordable to many lower and moderate-income Americans and the individual responsibility provision which ensures that healthy as well as unhealthy Americans obtain health coverage.

The tax credits are available to otherwise uninsured Americans with incomes between 100 and 400 percent of the federal poverty level. For 2014, tax credits are being received by 85 percent of marketplace enrollees and are reducing their premiums in the federally-facilitated exchanges by 76 percent.

The individual mandate is enforced through a tax that will be imposed on Americans who do have minimum essential coverage—such as employment-based coverage, individual coverage, or coverage through a government program—and who do not qualify for an exemption. For 2014, these individuals will owe a tax for each month that they lack minimum essential coverage of 1/12th of $95 per adult and $47.50 per child (up to $285 for a year) or 1 percent of their income above the tax filing limit up to the average annual cost of bronze plan ($2,448 per individual up to $12,240 for families of five or more).

In a recent post on Health Affairs Blog, Jon Kingsdale and Julia Lerche offered an excellent analysis of some of the difficulties that may be encountered during the 2014 tax filing season. In another post I described briefly recently released 2014 tax forms, as well as further guidance on tax matters. This post examines how tax reporting and filing will be handled in greater detail.

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Posts On ACA Legal Challenges Lead Health Affairs Blog July Top Ten


August 7th, 2014

Two posts regarding legal challenges to the Affordable Care Act were the most-read Health Affairs Blog posts in August. In the top spot: Tim Jost’s discussion of Supreme Court actions that were arguably at odds with the Court’s Hobby Lobby decision. Next on the list: another post by Jost analyzing two federal appellate court decisions taking conflicting positions on whether consumers may receive premium tax credits under the ACA in states using the federally facilitated exchange.

Number three on the July top-ten list is Suzanne Delbanco’s post on bundled payment, part of her ongoing series on payment reform; Jennifer DeCubellis and Leon Evans’ post on investing in care coordination is next.

The full list is below:

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Health Affairs August Issue: Variations In Health Care


August 4th, 2014

Health AffairsAugust variety issue includes a number of studies demonstrating variations in health and health care, such as differing obstetrical complication rates and disparities in care for diabetes. Other subjects in the issue include the impact of ACA coverage on young adults’ out-of-pocket costs; and how price transparency may help lower health care costs.

For mothers-to-be, huge differences in delivery complication rates among hospitals.

Four million women give birth each year in the United States. While the reported incidence of maternal pregnancy-related mortality is low (14.5 per 100,000 live births), the rate of obstetric complications is nearly 13 percent.

Laurent Glance of the University of Rochester and coauthors analyzed data for 750,000 obstetrical deliveries in 2010 from the Healthcare Cost and Utilization’s Nationwide Inpatient Sample. They found that women delivering vaginally at low-performing hospitals had twice the rate of any major complications (22.55 percent) compared to vaginal deliveries at high-performing hospitals (10.42 percent

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Implementing Health Reform: King Plaintiffs Ask For Supreme Court Review


August 1st, 2014

On July 31, 2014, Michael Carvin, attorney for the plaintiffs in King v. Burwell, one of two parallel cases challenging an IRS rule allowing premium tax credits to be issued by federally facilitated exchange, filed a petition for a writ of certioriari in the United States Supreme Court. The petition asks the Court to review the Fourth Circuit decision affirming Judge James Spencer’s ruling rejecting their claim.

As was described here in detail last week, ACA opponents lost in the Fourth Circuit in a unanimous decision in King v. Burwell but won a split decision in the District of Columbia Circuit Court of Appeals in Halbig v. Burwell. Carvin is thus seeking Supreme Court review based on a split of authority between the circuits that must be resolved by the Supreme Court.

It is not the intent of this post to review the arguments in Carvin’s brief. Carvin argues that judges Griffith and Randolph made the right decision in Halbig, and that judges Gregory, Thacker and Davis in the Fourth Circuit and Edwards in the D.C. Circuit are wrong. There is really only one new argument in the petition that was not made below, namely that Congress’ intent to deny premium tax credits in states that failed to establish exchanges has now been conclusively established by statements made by Jon Gruber two years after the statute was adopted. This disregards the fact that Gruber neither drafted nor voted on the ACA and had earlier stated that premium tax credits were available in federally facilitated exchange states.

Rather than rehashing the merits, this post will discuss the timing of the petition, the basis on which it can be accepted, and the consequences if it succeeds. Nothing will happen immediately with this petition. The government has 30 days to respond, and can request additional time. The appellants then have 14 days to reply. This puts us into mid-September. It is unlikely, therefore, that the Supreme Court will decide whether or not to accept the petition until it reconvenes in October

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Individual Patient Expanded Access: Developing Principles For A Structural And Regulatory Framework


July 31st, 2014

Editor’s note: In addition to Meaghan George, Sara Bencic and Darshak Sanghavi also coauthored this post. 

Individual patient expanded access, sometimes termed “compassionate use,” refers to situations where access to a drug still in the development process is granted to patients on a case-by-case basis outside of a clinical trial, prior to completion of mandated clinical trials and approval by the Food and Drug Administration (FDA). This typically involves filing a single patient or emergency investigational new drug (IND) request with the Food and Drug Administration and voluntary release of the drug by the manufacturer.

Generally, the following criteria must be met: there is reasonable expectation of meaningful benefit despite the absence of definitive clinical trial data, the patient has a serious or life-threatening condition, there are no comparable or satisfactory treatment alternatives, and there are no suitable clinical trials for the drug available to the patient. This form of expanded access, which is the focus of this paper, is different from the situation in which a drug is discharged to a large group of needy patients in the interval between successful phase 3 trials and presumed FDA approval, a strategy often termed a “treatment” IND or protocol, which was initially used in the 1980s for releasing zidovudine to patients with acquired immune deficiency syndrome.

A Call to Action: The Importance of Expanded Access Programs

The Engelberg Center for Health Care Reform at the Brookings Institution recently invited senior leaders from several pharmaceutical companies, two bioethicists, a senior FDA representative, and a patient advocate to share experiences and discuss organizational strategies related to expanded access (see acknowledgements). A driving factor for this meeting was a recent flurry of highly public cases of desperate patients seeking access to experimental drugs, which lead to social media campaigns and media coverage.

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Implementing Health Reform: Origination Clause Challenge To ACA Dismissed (Updated)


July 30th, 2014

Another Affordable Care Act challenge bit the dust on July 29, 2014, when the District of Columbia Court of Appeals affirmed a lower court decision that dismissed Sissel v. Department of Health and Human Services. Sissel had sued claiming first that the individual mandate “is not a regulation of commerce, but purports to compel affected Americans like [himself], to engage in commerce,” and second that the “shared responsibility payment” is a tax and violates the Origination Clause because it “originated in the Senate, not the House.”

The court had little trouble disposing of Sissel’s first claim, which, the court explained, was based on a misreading of the Supreme Court’s opinion in the NFIB case. Although five justices of the NFIB Court concluded that Congress lacked the authority to enact the individual mandate as a command under the Commerce Clause, a majority of the Court also concluded that the mandate did not in fact order individuals to purchase insurance, but rather imposed a tax on those who failed to do so. The requirement was thus, as the Supreme Court had already held, constitutional.

Sissel’s second claim was based on article 1, section 7, clause 1 of the Constitution, the Origination Clause, an obscure provision few Americans remember from fifth grade civics. It provides that “[a]ll Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as to other bills.” Sissel argued that the individual mandate of the ACA was a bill to raise revenue but that the ACA in fact originated in the Senate, and thus the provision was unconstitutional.

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Implementing Health Reform: What Makes A State Exchange? (Updated)


July 28th, 2014

One question that has arisen in the wake of the Halbig/King decisions is what exactly is a state exchange? The D.C. Circuit in Halbig and the Fourth Circuit in King seemed unclear as to the answer to this question. The D.C. Circuit counted 14 state exchanges, the Fourth Circuit 16.

A great deal, however, may turn on the answer. Two of the eight federal judges that have ruled on the question so far have held that only state exchanges and not federally facilitated exchanges can issue premium tax credits. Were this conclusion to be adopted in the end by the Supreme Court, which exchanges would count? In other words, how exactly does a state establish an exchange?

A careful reading of the law suggests that a state “establishes” an exchange when, exercising the legal powers of the executive or legislative branch, the state government takes certain actions, discussed below. Establishing the exchange – that is, using the power of state government to enable the exchange to operate and fulfill its responsibilities – is different from the carrying out the day-to-day operations, of the exchange, which might be carried out by public officials, private contractors, or even the federal government.

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Implementing Health Reform: Senator Rebuffed In Challenge To Congressional Participation In ACA Exchanges


July 23rd, 2014

The Halbig and King cases released on July 22, 2014 dramatically overshadowed another court decision released the previous day. That case, Johnson v. U.S. Office of Personnel Management, was important in its own right, however, and is covered here.

On July 21, 2014, Judge William C. Griesbach of the United States District Court for the Eastern District of Wisconsin dismissed a case brought by Wisconsin Republican Senator Ron Johnson and one of his staff members. The plaintiffs claimed that the rule promulgated by the Office of Personnel Management that allows members of Congress and their official staff to purchase health insurance through the exchanges with federal subsidies violates the Affordable Care Act and is unconstitutional. Judge Griesbach held that the plaintiffs had not been injured by the rule and thus had no standing to challenge it. This decision not only disposes of one more ACA challenge, it also calls further into question Congressman John Boehner’s proposed lawsuit challenging other ACA implementation decisions.

The ACA provides that “the only health plans that the Federal Government may make available to Members of Congress and congressional staff” are qualified health plans and plans sold through the exchange. This provision was adopted as an amendment offered by Senator Charles Grassley (R-IA), apparently to challenge the Democrats’ willingness to participate in the same program they were creating for other Americans. This challenge was embraced by the Democrats, however, resulting in the current law.

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Implementing Health Reform: Appellate Decisions Split On Tax Credits In ACA Federal Exchange


July 23rd, 2014

July 22, 2014 was arguably the most important day in the history of the implementation of the Affordable Care Act since the Supreme Court issued its ruling in the National Federation of Independent Business case in June of 2012. As no doubt most readers of this blog know by now, shortly after 10 a.m. the United States Court of Appeals for the District of Columbia Circuit handed down its decision in Halbig v. Burwell. Two judges ruled over a strong dissent that an Internal Revenue Service rule allowing federally facilitated exchanges to issue premium tax credits to low and moderate income Americans is invalid.

Approximately two hours later the Fourth Circuit Court of Appeals in Richmond, Virginia, unanimously upheld the IRS rule in King v. Burwell. Combined, the cases contain five judicial opinions, three in the Halbig case and two in King. Four of the six judges voted to uphold the rule, two to strike it down.

The Controversy

The issue in the cases is this: The ACA authorizes the IRS to provide premium tax credits to individuals with household incomes between 100 and 400 percent of the federal poverty level who are not eligible for other minimum essential coverage (such as affordable and adequate employer coverage, Medicaid, or Medicare). Premium tax credits are, however, only available to individuals who purchase coverage through the exchanges.

The ACA requests that the states establish exchanges, and sixteen states and the District of Columbia have done so. The ACA also, however, authorizes the federal government to establish exchanges in states that fail to set up their own exchanges. The federal government has done so in 34 states and is operating the individual exchange for two more. The IRS regulation allows premium tax credits to be awarded to eligible individuals in both states with state-operated exchanges and states with federal exchanges.

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The Latest Health Wonk Review


July 21st, 2014

Over at Wing of Zock, Jennifer Salopek offers some fresh thoughts in her “Polar Vortex” Health Wonk Review. Jennifer highlights Health Affairs Blog posts on the Supreme Court’s Hobby Lobby decision by Tim Jost, John Kraemer, and Sara Rosenbaum and coauthors, as well as a slew of other great posts.

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Implementing Health Reform: Hobby Lobby Response, The ACA In The Territories, And More


July 18th, 2014

July 17, 2014 was a remarkably active day in an otherwise quiet week for Affordable Care Act implementation. First, the Departments of Labor, Treasury, and Health and Human Services issued their first response to the Supreme Court’s Hobby Lobby decision —a Frequently Asked Question (FAQ) guidance requiring ERISA plans to provide notice to their participants and beneficiaries if they do not intend to cover contraceptives. Second, the Department of Health and Human Services sent letters to the territories (the Virgin Islands, Northern Mariana Islands, Guam, American Samoa, and Puerto Rico) informing them that insurers that market individual insurance policies in the territories are no longer required to comply with the ACA’s insurance market reforms.

Third, HHS released an enrollment bulletin at its REGTAP website describing how insurers in the federally facilitated exchange should handle enrollment for 2015 for individuals whose coverage was terminated in 2014 for non-payment. This post describes these issuances, as well as the May Medicaid enrollment report released on July 11, 2014 by HHS

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ACO Results And Treating Hepatitis C Most-Read Health Affairs Blog Posts For June


July 15th, 2014

In June, Matthew Petersen and David Muhlestein’s post on the cost and quality implications of the accountable care organization (ACO) model on the health care system was the most-read Health Affairs Blog post. Not too far behind was a post on Medicare’s role in treating Hepatitis C from Tricia Neuman, Jack Hoadley, and Juliette Cubanski.

Next was Tim Jost’s examination of the employer mandate and why it should be repealed and replaced, followed by Jon Gabel’s response to a Health Affairs Web First on cancelled non-group plans.

Here’s the full list:

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Recent Health Policy Brief: E-Cigarettes And Federal Regulation


July 11th, 2014

The latest Health Policy Brief from Health Affairs and the Robert Wood Johnson Foundation (RWJF) describes federal policy makers’ recent efforts to propose rules for e-cigarette regulation. E-cigarettes, virtually non-existent ten years ago, have skyrocketed in popularity, including among people who claim to use e-cigarettes as a tool to help them quit smoking altogether.

The 2009 Family Smoking Prevention and Tobacco Control Act gave the Food and Drug Administration (FDA) authority to oversee the manufacture, marketing, distribution, and sale of regulated tobacco products such as cigarettes, tobacco in cigarettes, roll-your-own, and smokeless tobacco. But it left unregulated other tobacco products such as cigars, pipe and hookah tobacco, nicotine gels, and e-cigarettes.

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