What the 2018 Midterm Elections Means for Health Care

https://www.healthaffairs.org/do/%2010.1377/hblog20181107.185087/full/?utm_source=Newsletter&utm_medium=email&utm_content=What+the+Midterms+Mean+For+Health+Care%3B+%22Stairway+To+Hell%22+Of+Health+Care+Costs%3B+Patient+Safety+In+Inpatient+Psychiatry&utm_campaign=HAT%3A+11-07-18

Whatever you want to call the 2018 midterm elections – blue wave, rainbow wave, or purple puddle – one thing is clear: Democrats will control the House.

That fundamental shift in the balance of power in Washington will have substantial implications for health care policymaking over the next two years. Based on a variety of signals they have been sending heading into Tuesday, we can make some safe assumptions about where congressional Democrats will focus in the 116th Congress. As importantly, there were a slew of health care-related decisions made at the state level, perhaps most notably four referenda on Medicaid expansion.

In this post, I’ll take a look at which health care issues will come to the fore of the Federal agenda due to the outcome Tuesday, as well as state expansion decisions. And it should of course be noted that, in addition to positive changes Democrats are likely to pursue over the next two years, House control will allow them to block legislation they oppose, notably further GOP efforts to repeal the Affordable Care Act (ACA).

Drug Pricing

Democrats have long signaled they consider pharmaceutical pricing to be one of their highest priorities, even after then-candidate Trump adopted the issue as part of his campaign platform and maintained his focus there through his tenure as President.

While aiming to use the issue to drive a wedge between President Trump and congressional Republicans, who have historically opposed government action to set or influence prices, Democrats will also strive to distinguish themselves by going further on issues like direct government negotiation of Medicare Part D drug reimbursement.

Relevant House committee chairs, perhaps especially likely Oversight and Investigations chair Elijah Cummings (D-MD), will also take a more aggressive tack in investigating manufacturers and other sector stakeholders for pricing increases and other practices. Democratic leaders believe it will be easier to achieve consensus on this issue than on more contentious issues like single payer (more detail below) among their diverse caucus, which will include dozens more members from “purple” districts as well as members on the left flank of the party

Preexisting Condition Protections

If you live in a contested state or district, you have probably seen political ads relating to protecting patients with preexisting conditions. As long as a Republican-supported lawsuit seeking to repeal the ACA continues, Democrats believe they can leverage this issue to demonstrate the importance of the ACA and their broader health care platform.

A three-legged stool serves under current law to protect patients with chronic conditions: (1) the ban on preexisting condition exclusions; (2) guaranteed issue; and (3) community rating. Democrats will likely seek to bolster these protections with measures to shore up the ACA exchange markets. In the same vein, they will likely strive to rescind Trump Administration proposals to expand association-based and short-term health plans, which put patients with higher medical costs at risk by disaggregating the market.

Opioids

Congressional Democrats believe that there were some stones left unturned in this year’s opioid-related legislation, especially regarding funding for many of the programs it authorized. This is a priority for likely Ways & Means Committee Chair Richie Neal (D-MA) and could potentially be a source of bipartisan compromise.

Medicare for All

While this issue could become a bugaboo for old guard party leaders, the Democratic base will likely escalate its calls for action on Medicare for All now that the party has taken the House. Because the details of what various camps intend by this term are still vague (some believe it is tantamount to single payer, others view it as a gap-fill for existing uninsured, etc.), we will likely see a variety of competing proposals arise in the coming two years. Expect less bona fide committee action and more of a public debate aired via the presidential primary season that will kick off about, oh, right now.

Surprise Bills

The drug industry is not the only health care sector that can expect heightened scrutiny of their pricing practices now that Democrats control the people’s chamber. Most notably, the phenomenon of surprise bills (unexpected charges often stemming from a hospital visit) has risen as a salient issue for the public and thus a political winner for the party. Republicans have shown interest in this issue as well, so it could be another source of bipartisanship next year.

Regulatory Oversight

Democrats believe they are scoring well with the public, and certainly their base, every time they take on President Trump. The wide range of aggressive regulation (and deregulation) the Administration has pursued will be thoroughly investigated and challenged by Democratic committee leaders, especially administration efforts to dismantle the ACA and to test the legal bounds of the hospital site neutrality policy enacted in the Bipartisan Budget Act (BBA) of 2015.

Extenders

While it instituted permanent policies for Medicare physician payments and some other oft-renewed ‘extenders’, the Medicare Access and CHIP Reauthorization Act (MACRA) of 2015 left a variety of policies in the perennial legislative limbo of needing to be repeatedly extended. While the policies in the Medicare space have dwindled to subterranean, though not necessarily cheap, affairs like the floor on geographic adjustments to physician payments, a slew of Medicaid-related and other policies are up for renewal in 2019.

For example, Medicaid Disproportionate Share Hospital (DSH) payments face a (previously delayed) cliff next year. That and the most expensive extender, ACA-initiated funding for community health centers, alone spring the cost of this package into the high single digit billions at least, driving a need for offsetting payment cuts and creating a vehicle for additional policy priorities.

A likely addition to this discussion will be the fact that Medicare physician payments, per MACRA, are scheduled to flatline for 2020-2025 before beginning to increase again, albeit in divergent ways for doctors participating in the Merit-Based Incentive Payment Program (MIPs – 0.25 percent/year) and Advanced Alternative Payment Models (APMs – 0.75 percent/year). The AMA assuredly noticed this little wrinkle in the celebrated legislation but hundreds of thousands of doctors probably did not.

Medicaid Expansion

Of the variety of state-level health policy decisions voters made on Tuesday, perhaps the most significant related to Medicaid expansion. In there states where Republican leaders have blocked expansion under the ACA – Nebraska, Idaho, and Utah – voters endorsed it via public referenda. Increasing the Medicaid eligibility level in those three states to the ACA standard will bring coverage to approximately 300,000 people.

Notably, voters in Montana rejected a proposal to continue funding the Medicaid expansion the state enacted temporarily in 2015 by an increase to the state’s tobacco tax. Their expansion is now scheduled to lapse in July 2019 if the legislature doesn’t act to maintain it. If they do not act, about 129,000 Montanans will lose Medicaid coverage.

Finally, Democratic gubernatorial wins in Maine, Kansas, and Wisconsin will make Medicaid expansion more likely in those states.

As they say, elections have consequences. While the Republican-controlled Senate and White House can block any Democratic priorities they oppose, the 2018 midterm elections assure a busy two years for health care stakeholders.

 

 

Pre-existing conditions: Does any GOP proposal match the ACA?

https://www.politifact.com/truth-o-meter/article/2018/oct/17/pre-existing-conditions-does-any-gop-proposal-matc/?fbclid=IwAR2QXSwiwRryxaHWJVgO3evTUtJPk6QcV1HkxkaI2qq3iPWqsrXqGA0qPeY

From a routine visit to a critical exam, the stethoscope remains one of the most common physician tools. (Alex Proimos, via Flickr Creative Commons)

In race after race, Democrats have been pummeling Republicans on the most popular piece of Obamacare, protections for pre-existing conditions. No matter how sick someone might be, today’s law says insurance companies must cover them.

Republican efforts to repeal and replace Obamacare have all aimed to retain the guarantee that past health would be no bar to new coverage.

Democrats aren’t buying it.

In campaign ads in NevadaIndianaFloridaNorth Dakota, and more, Democrats charged their opponents with either nixing guaranteed coverage outright or putting those with pre-existing conditions at risk. The claims might exaggerate, but they all have had a dose of truth.

Republican proposals are not as air tight as Obamacare.

We’ll walk you through why.

The current guarantee

In the old days, insurance companies had ways to avoid selling policies to people who were likely to cost more than insurers wanted to spend. They might deny them coverage outright, or exclude coverage for a known condition, or charge so much that insurance became unaffordable.

The Affordable Care Act boxes out the old insurance practices with a package of legal moves. First, it says point-blank that carriers “may not impose any preexisting condition exclusion.” It backs that up with another section that says they “may not establish rules for eligibility” based on health status, medical condition, claims experience or medical history.

Those two provisions apply to all plans. The third –– community rating –– targets insurance sold to individuals and small groups (about 7 percent of the total) and limits the factors that go into setting prices. In particular, while insurers can charge older people more, they can’t charge them more than three times what they charge a 21-year-old policy holder.

Wrapped around all that is a fourth measure that lists the essential health benefits that every plan, except grandfathered ones, must offer. A trip to the emergency room, surgery, maternity care and more all fall under this provision. This prevents insurers from discouraging people who might need expensive services by crafting plans that don’t offer them.

At rally after rally for Republicans, President Donald Trump has been telling voters “pre-existing conditions will always be taken care of by us.” At an event in Mississippi, he faulted Democrats, saying, they have no plan,” which ignores that Democrats already voted for the Obamacare guarantees.

At different times last year, Trump voiced support for Republican bills to replace Obamacare. The White House said the House’s American Health Care Act “protects the most vulnerable Americans, including those with pre-existing conditions.” A fact sheet cited $120 billion for states to keep plans affordable, along with other facets in the bill.

But the protections in the GOP plans are not as strong as Obamacare. One independent analysis found that the bill left over 6 million people exposed to much higher premiums for at least one year. We’ll get to the congressional action next, but as things stand, the latest official move by the administration has been to agree that the guarantees in the Affordable Care Act should go. It said that in a Texas lawsuit tied to the individual mandate.

The individual mandate is the evil twin of guaranteed coverage. If companies were forced to cover everyone, the government would force everyone (with some exceptions) to have insurance, in order to balance out the sick with the healthy. In the 2017 tax cut law, Congress zeroed out the penalty for not having coverage. A few months later, a group of 20 states looked at that change and sued to overturn the entire law.

In particular, they argued that with a toothless mandate, the judge should terminate protections for pre-existing conditions.

The U.S. Justice Department agreed, writing in its filing “the individual mandate is not severable from the ACA’s guaranteed-issue and community-rating requirements.”

So, if the mandate goes, so does guaranteed-issue.

The judge has yet to rule.

Latest Republican plan has holes

In August, a group of 10 Republican senators introduced a bill with a title designed to neutralize criticism that Republicans don’t care about this issue. It’s called Ensuring Coverage for Patients with Pre-Existing Conditions. (A House Republican later introduced a similar bill.)

The legislation borrows words directly from the Affordable Care Act, saying insurers “may not establish rules for eligibility” based on health status, medical condition, claims experience or medical history.

But there’s an out.

The bill adds an option for companies to deny certain coverage if “it will not have the capacity to deliver services adequately.”

To Allison Hoffman, a law professor at the University of Pennsylvania, that’s a big loophole.

“Insurers could exclude someone’s preexisting conditions from coverage, even if they offered her a policy,” Hoffman said. “That fact alone sinks any claims that this law offers pre-existing condition protection.”

The limit here is that insurers must apply such a rule across the board to every employer and individual plan. They couldn’t cherry pick.

But the bill also gives companies broad leeway in setting premiums. While they can’t set rates based on health status, there’s no limit on how much premiums could vary based on other factors.

The Affordable Care Act had an outside limit of 3 to 1 based on age. That’s not in this bill. And Hoffman told us the flexibility doesn’t stop there.

“They could charge people in less healthy communities or occupations way more than others,” Hoffman said. “Just guaranteeing that everyone can get a policy has no meaning if the premiums are unaffordable for people more likely to need medical care.”

Rodney Whitlock, a health policy expert who worked for Republicans in Congress, told us those criticisms are valid.

“Insurers will use the rules available to them to take in more in premiums than they pay out in claims,” Whitlock said. “If you see a loophole and think insurers will use it, that’s probably true.”

Past Republican plans also had holes

Whitlock said more broadly that Republicans have struggled at every point to say they are providing the same level of protection as in the Affordable Care Act.

“And they are not,” Whitlock said. “It is 100 percent true that Republicans are not meeting the Affordable Care Act standard. And they are not trying to.”

The House American Health Care Act and the Senate Better Care Reconciliation Act allowed premiums to vary five fold, compared to the three fold limit in the Affordable Care Act. Both bills, and then later the Graham-Cassidy bill, included waivers or block grants that offered states wide latitude over rates.

Graham-Cassidy also gave states leeway to redefine the core benefits that every plan had to provide. Health law professor Wendy Netter Epstein at DePaul University said that could play out badly.

“It means that insurers could sell very bare-bones plans with low premiums that will be attractive to healthy people, and then the plans that provide the coverage that sicker people need will become very expensive,” Epstein said.

Insurance is always about sharing risk. Whether through premiums or taxes, healthy people cover the costs of taking care of sick people. Right now, Whitlock said, the political process is doing a poor job of resolving how that applies to the people most likely to need care.

“The Affordable Care Act set up a system where people without pre-existing conditions pay more to protect people who have them,” Whitlock said. “Somewhere between the Affordable Care Act standard and no protections at all is a legitimate debate about the right tradeoff. We are not engaged in that debate.”

 

 

Efforts to Undo Pre-Existing Condition Protections Put Millions of Women and Girls at Risk

https://www.americanprogress.org/issues/women/news/2018/06/21/452643/moving-backward/

A mother and her child visit the doctor, October 2013.

The Affordable Care Act (ACA) prohibits discriminatory insurance practices in pricing and coverage in the individual market. Before the law was enacted, women routinely were denied coverage or charged more for insurance based on so-called pre-existing conditions. For example, in the individual insurance market, a woman could be denied coverage or charged a higher premium if she had been diagnosed with or experienced HIV or AIDS; diabetes; lupus; an eating disorder; or pregnancy or a previous cesarean birth, just to name a few. The ACA provided women with protections for pre-existing conditions and access to comprehensive, affordable, and fair health services.

But recent efforts to eliminate key ACA protections, discussed below, would put millions of women and girls once again at risk of being charged more or denied coverage for individual insurance.

Efforts to eliminate ACA protections threaten the security of women with pre-existing conditions

Recently, the U.S. Department of Justice refused to uphold the law in Texas v. United States, when it argued that the community rating and guaranteed issue provisions of the ACA are unconstitutional. Without guaranteed issue, women could be denied coverage based on their medical history, their age, and their occupation, among other factors. Without community rating, women could be charged more, or priced out of the insurance market altogether, based on their health status or other factors. Insurance companies could also try to reinstate gender rating, a common pre-ACA practice in which insurance companies charged women higher premiums than they did men, even though other parts of the ACA protect women from discrimination in the health care system.

Now, think tanks and conservative opponents of the ACA are introducing proposals to repeal the ACA yet again. If implemented, these proposals would similarly put women at risk of being denied coverage or charged more because of their health status.

More than half of all women and girls have pre-existing conditions

The authors estimate that more than half of women and girls nationwide—more than 67 million—have pre-existing conditions. There are also nearly 6 million pregnancies each year, a commonly cited reason for denying women coverage on the individual market before the ACA. The two tables available for download below provide state-level detail for the number of women and girls with pre-existing conditions and the number of pregnancies.

A large share of women have coverage through an employer or Medicaid and would, therefore, not face discriminatory practices such as medical underwriting or denials based on health conditions. But the data make clear that allowing insurers to return to pre-ACA practices could lead to millions of women and girls being denied coverage or charged more based on their health status if they ever sought coverage in the individual market.

 

 

The Texas lawsuit could end some of the ACA’s protections for employer coverage

https://theincidentaleconomist.com/wordpress/the-texas-lawsuit-could-end-some-of-the-acas-protections-for-employer-sponsored-coverage/

Image result for health insurance guaranteed issue

The Trump administration’s refusal to defend portions of the Affordable Care Act is shocking enough. Equally shocking is how little it seems to care what happens if it gets what it’s asking for.

One question in particular: what about legal protections for the 160 million people who get insurance through their employers? Will their insurance still cover their preexisting conditions, even if they switch jobs? I honestly have no idea.

In its brief, the Justice Department argues that the community rating and guaranteed issue provisions of the ACA must be invalidated. But it never mentions that those provisions apply not only to individual health plans, but also to employer plans.

So should those rules give way across the board? Or only for individual insurance plans?

Maybe it should be the latter. The mandate isn’t critical to securing the health of the employer market, so the ACA rules that protect employees aren’t inextricably linked to the mandate and shouldn’t be invalidated. But it could also plausibly be the former: if the rules governing community rating and guaranteed issue are inseverable, maybe the court shouldn’t do micro-surgery to save some subpart of those rules.

But guess what? In its brief, the Justice Department doesn’t say which approach it endorses.

Actually, it’s worse than that.  When the Justice Department identifies the rules governing community rating and guaranteed issue, it doesn’t cite the ACA itself (Public Law 111-948). Instead, it cites parts of the U.S. Code that codify portions of the ACA (e.g., 42 U.S.C. 300gg). The implication is that the Justice Department wants the court to enjoin those code provisions.

But the code provisions were on the books long before the ACA was adopted. Prior to the ACA, they listed protections for employer-sponsored plans that had been adopted in the Health Insurance Portability and Accountability Act. Among other things, HIPAA limited the circumstances under which an employer could refuse to cover an employee’s preexisting conditions. The protections weren’t perfect, but they were something. The ACA patched HIPAA’s gaps by amending those code provisions.

So if the U.S. Code provisions are enjoined altogether—which, again, is what the Justice Department appears to be asking for—some of the HIPAA-era protections would be wiped from the books too.* Is that really what the Justice Department wants? Because that’s the thrust of its brief.

The confusion may reflect a basic legal mistake, one that Tobias Dorsey highlighted in Some Reflections on Not Reading the Statutes: the U.S. Code is a codification of existing laws, but it’s not itself the law. That’s why code provisions shouldn’t themselves be the target of any injunction. Any injunction should run against the ACA itself. If that’s what the Justice Department really wants, then it has to clarify what it’s really asking for. Failing to do so could wreak havoc in the employer-sponsored market.

Even if the injunction only runs against portions the ACA, however, that still wouldn’t resolve whether the ACA’s protections would still apply to employer-sponsored plans. If they don’t, that’s a big deal: HIPAA’s protections are porous.

So far, however, the Trump administration hasn’t said a word—leaving 160 million people in the lurch.

 

How Accessible and Affordable were Individual Market Health Plans before the Affordable Care Act? Depends Where You Lived

http://www.rwjf.org/content/dam/farm/reports/issue_briefs/2017/rwjf434339

Image result for How Accessible and Affordable were Individual Market Health Plans before the Affordable Care Act? Depends Where You Lived

Before the Affordable Care Act (ACA), the landscape of the individual market looked much different than it does today, particularly for those in less than perfect health. For the most part, what state you lived in determined how easily you could purchase a health plan, the price you would pay, and what the plan would cover. Rules for insurers in the individual market varied from state to state, but in most states, if you had a pre-existing condition, you could be denied coverage, pay more, or have coverage for your pre-existing condition excluded from your health plan. As Congress debates repeal of the ACA and its protections for people with pre-existing conditions, many policymakers have called for greater state flexibility in insurance regulation than currently exists under the ACA. It therefore is helpful to understand the range of consumer protections in the states before the ACA, and why the ACA included the insurance reforms it did. This issue brief summarizes state rules for the individual market on the eve of the Affordable Care Act.

Healthcare Triage: Republican Plans for The Affordable Care Act

http://theincidentaleconomist.com/wordpress/healthcare-triage-republican-plans-for-the-affordable-care-act/

Image result for Healthcare Triage: Republican Plans for The Affordable Care Act

After campaigning for years on a plan of “repeal and replace Obamacare,” Republicans finally have the means within their grasp to make much of that possible. They control the presidency, the House, and the Senate. The filibuster still poses some potential threats to their plans, but it’s also within their means to abolish its widespread use in such a way that they could both repeal the Affordable Care Act and replace it with something of their own design.

What would that be? In contrast to what many say, there are Republican plans out there to consider. They’re the topic of this week’s Healthcare Triage.

Donald Trump is about to face a rude awakening over Obamacare

https://www.washingtonpost.com/news/wonk/wp/2016/11/12/donald-trump-is-beginning-to-face-a-rude-awakening-over-obamacare/?utm_source=RealClearHealth+Morning+Scan&utm_campaign=c672ab1b84-EMAIL_CAMPAIGN_2016_11_12&utm_medium=email&utm_term=0_b4baf6b587-c672ab1b84-84752421

After reiterating his promise to repeal and replace the Affordable Care Act, President-elect Donald Trump has indicated that he may keep two of the law’s most popular provisions. One is straightforward enough — children up to age 26 being allowed to stay on their parents’ plan. The other — preventing insurance companies from denying coverage because of preexisting conditions — offers a perfect illustration of why Trump and most of the other Republicans critics of Obamacare don’t understand the health insurance market.

Let’s say that in the beautiful new world of “repeal and replace,” insurers are required to sell you insurance despite the fact that your kid has a brain tumor. Insurance companies know what to do with that. Their actuaries can calculate that kids with brain tumors typically require (I’m making this number up) about $200,000 a year in medical care. So they’ll offer to sell you a policy at an annual premium of $240,000.

At this point your response will probably be that such an outcome is not fair. When the law says insurance companies can’t discriminate on the basis for preexisting conditions, surely what it means is that they have to charge roughly the same price for health insurance, irrespective of your preexisting condition. In the language of insurance, that’s called “guaranteed issue at community rates.”

Unfortunately, in the states that have tried guaranteed issues at community rates, the insurance markets have collapsed. That’s because if you guarantee everyone the right to buy health insurance at community rates, then some consumers will game the system. The young and healthy ones won’t buy any health insurance at all — they’ll go without until they are diagnosed with diabetes or a brain tumor or get hit by a truck crossing the street. And when that happens, they will immediately call up Aetna or Anthem and exercise their right to buy health insurance at the low community rate, irrespective of their medical condition. It won’t be long before insurance companies begin losing a ton of money and are forced either to raise premiums through the roof or stop writing policies altogether.