Tag Archives: HHS

Senate votes to reopen government, averts major setback to health agencies

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http://www.healthcarefinancenews.com/news/government-reopens-averts-major-setback-health-agencies?mkt_tok=eyJpIjoiTldRek16STVORGd5WXpnMiIsInQiOiJ4XC9LYmRhVVpueHBOS2o1OWhxMWsyd0xPbVREQ0F6R2ZoK05rVGl3VWZIbWNlOFNORVwvU1dkbkFvakJRUU15UUJMYnBtdzQ0MDFvcHBiZ0FneTF1UFdSSGRLdVRZMTNFcUl2SmhcL0paaEVidlVrTmdjemp3R3BycDJtamp2VjlaWSJ9

Debate on the Senate floor on Jan. 22. Credit: C-span

Here’s a look at HHS, ONC and CDC plans during a government shutdown.

The Senate voted on Monday to approve a temporary funding measure that keeps the government running through Feb. 8.

The vote came after the government had been shut down for two days with the U.S. Department of Health and Human Services contingency plans already kicking in as of Monday morning when about 50 percent of its staff stayed home on furlough.

The Office of the National Coordinator for Health Information Technology is not operating. However, the NIH is continuing care for current NIH Clinical Center patients.

A contingency staffing plan is keeping other operations going, including Medicare and Medicaid payments, though an extended shutdown could result in delays in claims processing, audits, and other administrative functions.

In the short term, the Medicare program will continue largely without disruption during a lapse in appropriations, according to HHS.

States will have sufficient funding for Medicaid through the second quarter.

The Centers for Medicare and Medicaid Services will maintain the staff necessary to make payments to eligible states from remaining Children’s Health Insurance Program (CHIP) carryover balances.

CMS is continuing key federal exchange activities, such as open enrollment verification.

Other ongoing HHS activities include substance abuse and mental health services for treatment referral and the suicide prevention lifeline.

The Administration for Children and Families and Temporary Assistance for Needy Families (TANF), along with child support and foster care services continues.

The Centers for Disease Control and Prevention is maintaining its 24/7 emergency operations center.

The CDC will continue to track the data on the flu, which has been virulent this season.

Trump Likes Drug Price Negotiations; His Nominee for Health Secretary Doesn’t

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 Alex M. Azar II, President Trump’s nominee for secretary of health and human services, said Tuesday that he was wary of proposals for the government to negotiate drug prices for Medicare beneficiaries, an idea endorsed by Mr. Trump in the 2016 campaign.

But Mr. Azar said that in some situations, he was willing to look at proposals to negotiate prices for a limited number of medicines.

He made the comments at a Senate confirmation hearing on Tuesday, where he tried to allay the concerns of some Democrats who asserted that he would be biased in favor of pharmaceutical companies because he had worked for a decade as a top executive at Eli Lilly, the company in Indiana that sells drugs for diabetes, erectile dysfunction and schizophrenia, among other conditions.

Mr. Azar’s remarks on drug price negotiations were carefully circumscribed and somewhat ambiguous — an approach that allowed him to get through the hearing largely unscathed.

If Medicare negotiates drug prices, he said, patients might have less access to some medicines because the government would probably establish a list of preferred products.

“For the government to negotiate there, we would have to have a single national formulary that restricted access to all seniors for medicines,” Mr. Azar told the Senate Finance Committee. “I don’t believe we want to go there in restricting patient access.”

At the same time, Mr. Azar said, “it’s worth looking at” proposals to allow price negotiations for drugs in Part B of Medicare. Under this part of the program, patients receive cancer drugs and other medications, often by infusion or injection, in doctor’s offices and hospital outpatient clinics.

Mr. Azar, who worked for six years in the administration of President George W. Bush, is expected to win confirmation, with support from Republicans and perhaps a few Democrats, who view him as a pragmatic problem solver rather than an ideologue. He would take charge of a cabinet department that spends more than a trillion dollars a year providing health insurance to more than 130 million Americans.

Senator Bill Nelson, Democrat of Florida, asked Mr. Azar whether he would support cuts in Medicare, Medicaid or Social Security to offset increases in the federal budget deficit that would be caused by the recently passed tax legislation.

“The president has stated his opposition to cuts to Medicare, Medicaid or Social Security,” Mr. Azar replied. “He said that in the campaign, and I believe he remains steadfast in his views on that. He’s made that commitment. I will live up to that if I’m confirmed.”

But like many Republicans, Mr. Azar said that cuts in the growth of federal benefit programs were not really cuts if federal spending on the programs continued to increase.

Democrats kept returning to the question of drug prices. Mr. Azar said that the expertise he acquired in the pharmaceutical industry would help him rein in drug costs as a federal official.

“Across the board,” he said, “drug prices are too high. Insulin prices are too high. All drug prices are too high in this country.”

Democrats were generally skeptical, based on Lilly’s record during Mr. Azar’s time at the company.

“The price of Lilly’s bone-growth drug Forteo, used to treat osteoporosis, more than doubled on Mr. Azar’s watch,” said Senator Ron Wyden of Oregon, the senior Democrat on the Finance Committee. In the same period, Mr. Wyden said, the company more than doubled prices for other drugs including Humalog, used to treat diabetes, and Strattera, for attention deficit hyperactivity disorder.

Mr. Wyden asked Mr. Azar if, as head of Lilly’s operations in the United States, he had ever approved a reduction in the price of a Lilly drug.

Mr. Azar avoided a direct answer and blamed “the system.”

“I don’t know that there is any drug price of a branded product that has ever gone down from any company on any drug in the United States because every incentive in this system is toward higher prices,” Mr. Azar said, adding: “No one company is going to fix that system. That’s why I want to be here working with you.”

Mr. Azar said he saw no need for the government to negotiate prices for drugs covered by Part D of Medicare, which pays for pills and other products that patients can give themselves and purchase from neighborhood drugstores and mail-order pharmacies.

Medicare’s Part D drug benefit is delivered entirely by private companies under contract with the government. These companies and their agents, known as pharmacy benefit managers, negotiate with drug manufacturers, and Mr. Azar said he did not believe the government could get lower prices by negotiating directly with drug companies.

A 2003 law prohibits the Department of Health and Human Services from interfering in negotiations between drug manufacturers and insurers that provide drug coverage under Part D of Medicare. “You would not get better pricing by removing” that prohibition, Mr. Azar said.

In the 2016 campaign and since taking office, Mr. Trump has said that Medicare could save large sums by negotiating directly with drug companies. But drug companies adamantly oppose that idea, and Mr. Trump has not taken steps to translate that into practice.

Asked specifically if Medicare should negotiate drug prices, Mr. Azar said: “In Part D, we do significant negotiation through pharmacy benefit managers that get the best rates of any commercial payers. We don’t do that in Part B, which is where we have physician-administered drugs. We basically pay sales price plus 6 percent or some other number.”

As an alternative, Mr. Azar said he supported proposals to link the pricing of prescription drugs to an assessment of how well they work for patients. Under such arrangements, known as value-based pricing, insurers would pay more for medicines that were highly effective and less for those that did not work well.

Mr. Azar also said he supported an agency created by the Affordable Care Act to test novel ways of delivering and paying for health care. And he said that some of the experiments could require doctors and hospitals to participate. Republicans in Congress have generally opposed mandatory participation.

Understanding the Intersection of Medicaid and Work

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https://www.kff.org/medicaid/issue-brief/understanding-the-intersection-of-medicaid-and-work/?utm_campaign=KFF-2018-The-Latest&utm_source=hs_email&utm_medium=email&utm_content=59811229&_hsenc=p2ANqtz–JERFINvucriGGpU1rflJEeJxuQPVDm8Wxcl7b-PGXeAoVUch8Oz-J5zdRyTzl09wIqr9zHKJO6Lrp-P6xvIdaGh3oKQ&_hsmi=59811229

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Medicaid is the nation’s public health insurance program for people with low incomes. Overall, the Medicaid program covers one in five Americans, including many with complex and costly needs for care. Historically, nonelderly adults without disabilities accounted for a small share of Medicaid enrollees; however, the Affordable Care Act (ACA) expanded coverage to nonelderly adults with income up to 138% FPL, or $16,642 per year for an individual in 2017. As of December 2017, 32 states have implemented the ACA Medicaid expansion.1 By design, the expansion extended coverage to the working poor (both parents and childless adults), most of whom do not otherwise have access to affordable coverage. While many have gained coverage under the expansion, the majority of Medicaid enrollees are still the “traditional” populations of children, people with disabilities, and the elderly.

Some states and the Trump administration have stated that the ACA Medicaid expansion targets “able-bodied” adults and seek to make Medicaid eligibility contingent on work. Under current law, states cannot impose a work requirement as a condition of Medicaid eligibility, but some states are seeking waiver authority to do so.  These types of waiver requests were denied by the Obama administration, but the Trump administration has indicated a willingness to approve such waivers. This issue brief provides data on the work status of the nearly 25 million non-elderly adults without SSI enrolled in Medicaid (referred to as “Medicaid adults” throughout this brief) to understand the potential implications of work requirement proposals in Medicaid.  Key takeaways include the following:

  • Among Medicaid adults (including parents and childless adults — the group targeted by the Medicaid expansion), nearly 8 in 10 live in working families, and a majority are working themselves. Nearly half of working Medicaid enrollees are employed by small firms, and many work in industries with low employer-sponsored insurance offer rates.
  • Among the adult Medicaid enrollees who were not working, most report major impediments to their ability to work including illness or disability or care-giving responsibilities.
  • While proponents of work requirements say such provisions aim to promote work for those who are not working, these policies could have negative implications on many who are working or exempt from the requirements. For example, coverage for working or exempt enrollees may be at risk if enrollees face administrative obstacles in verifying their work status or documenting an exemption.

Data Findings

Among nonelderly adults with Medicaid coverage—the group of enrollees most likely to be in the workforce—nearly 8 in 10 live in working families, and a majority are working themselves. Because policies around work requirements would be intended to apply to primarily to nonelderly adults without disabilities, we focus this analysis on adults whose eligibility is not based on receipt of Supplemental Security Income (SSI, see methods box for more detail). Data show that among the nearly 25 million non-SSI adults (ages 19-64) enrolled in Medicaid in 2016, 6 in 10 (60%) are working themselves (Figure 1). A larger share, nearly 8 in 10 (79%), are in families with at least one worker, with nearly two-thirds (64%) with a full-time worker and another 14% with a part-time worker; one of the adults in such families may not work, often due to caregiving or other responsibilities.

Because states that expanded Medicaid under the ACA cover adults with family incomes at higher levels than those that did not, adults in Medicaid expansion states are more likely to be in working families or working themselves than those in non-expansion states (Table 1). Adults who are younger, male, Hispanic or Asian were more likely to be working than those who are older, female, or White, Black, or American Indian, respectively (Figure 2 and Table 2). Not surprisingly, adults with more education or better health were more likely to work than others (Figure 3 and Table 2). Perhaps reflecting job market conditions, those living in the South were less likely to work than those in other areas, though similar rates of enrollees in urban and rural areas were working (Table 2). 

Most Medicaid enrollees who work are working full-time for the full year, but their annual incomes are still low enough to qualify for Medicaid. Among adult Medicaid enrollees who work, the majority (51%) worked full-time (at least 35 hours per week) for the entire year (at least 50 weeks during the year) (Table 3).2Most of those who work for only part of the year still work for the majority of the year (26 weeks or more). By definition (that is, in order to meet Medicaid eligibility criteria), these individuals are working low-wage jobs. For example, an individual working full-time (40 hours/week) for the full year (52 weeks) at the federal minimum wage would earn an annual salary of just over $15,000 a year, or about 125% of poverty, below the 138% FPL maximum targeted by the ACA Medicaid expansion.

Many Medicaid enrollees working part-time face impediments to finding full-time work.  Among adult Medicaid enrollees who work part-time, many cite economic reasons such as inability to find full-time work (10%) or slack business conditions (11%) as the reason they work part-time versus full-time. Other major reasons are attendance at school (14%) or other family obligations (14%).

Nearly half of working adult Medicaid enrollees are employed by small firms, and many work in industries with low employer-sponsored coverage offer rates.  Working Medicaid enrollees work in firms and industries that often have limited employer-based coverage options. More than four in ten adult Medicaid enrollees who work are employed by small firms with fewer than 50 employees that will not be subject to ACA penalties for not offering coverage (Figure 4). Further, many firms do not offer coverage to part-time workers. Four in ten Medicaid adults who work are employed in industries with historically low insurance rates, such as the agriculture and service industries. A closer look by specific industry shows that one-third of working Medicaid enrollees are employed in ten industries, with one in 10 enrollees working in restaurants or food services (Figure 5). The Medicaid expansion was designed to reach low-income adults left out of the employer-based system, so, it is not surprising that among those who work, most are unlikely to have access to health coverage through a job.

Among the adult Medicaid enrollees who were not working, most report major impediments to their ability to work.  Even though individuals qualifying for Medicaid on the basis of a disability through SSI were excluded from this group, more than one-third of those not working reported that illness or disability was the primary reason for not working. SSI disability criteria are stringent and can take a long time to establish. People can have physical and/or mental health disabilities that interfere with their ability to work, or to work full-time, without those impairments rising to the SSI level of severity. Other analysis indicates that nearly nine in ten (88%) non-SSI Medicaid adults who reports not working due to illness or disability has a functional limitation, and more than two-thirds (67%) have two or more chronic conditions such as arthritis or asthma.3

30% of non-working Medicaid adults reported that they did not work because they were taking care of home or family; 15% were in school; 6% were looking for work and another 9% were retired (Figure 6). Women accounted for 62% of Medicaid enrollees who were not working in 2016, and parents with children under the age of 6 accounted for 17%.

Policy Implications

Under current law, states cannot impose a work requirement as a condition of Medicaid eligibility. As with other core requirements, the Medicaid statute sets minimum eligibility standards, and states are able to expand coverage beyond these minimum levels. Prior to the ACA, individuals had to meet not only income and resource requirements but also categorical requirements to be eligible for the program. These categorical requirements provided coverage pathways for adults who were pregnant women or parents as well as individuals with disabilities, but other adults without dependent children were largely excluded from coverage. The ACA was designed to fill in gaps in coverage and effectively eliminate these categorical eligibility requirements by establishing a uniform income threshold for most adults. States are not allowed to impose other eligibility requirements that are not in the law.

Some states have proposed tying Medicaid eligibility to work requirements using waiver authority that may be approved by the Trump Administration. Under Section 1115 of the Social Security Act, the Secretary of HHS can waive certain provisions of Medicaid as long as the Secretary determines that the initiative is a “research and demonstration project” that “is likely to assist in promoting the objectives” of the program. The Obama administration did not approve waivers that would condition Medicaid eligibility on work on the grounds that they did not meet the waiver test to further the purpose of the program which is to provide health coverage. The Trump Administration has indicated a willingness to approve waivers to require work.

Research shows that Medicaid expansion has not negatively affected labor market participation, and some research indicates that Medicaid coverage supports work. A comprehensive review of research on the ACA Medicaid expansion found that there is no significant negative effect of the ACA Medicaid expansion on employment rates and other measures of employment and employee behavior (such as transitions from employment to non-employment, the rate of job switches, transitions from full- to part-time employment, labor force participation, and usual hours worked per week). In addition, focus groups, state studies, and anecdotal reports highlight examples of Medicaid coverage supporting work and helping enrollees transition into new careers. For example, individuals have reported that receiving medication for conditions like asthma or rheumatoid arthritis through Medicaid is critical in supporting their ability to work.  Addressing barriers to work requires adequate funding and supports.  While TANF spending on work activities and supports is critiqued by some as too low, it exceeds estimates of state Medicaid program spending to implement a work requirement.

Implementing work requirements can create administrative complexity and put coverage at risk for eligible enrollees who are working or who may be exempt.  States can incur additional costs and demands on staff, and some eligible people could lose coverage.  While work requirements are intended to promote work among those not working, coverage for those who are working could be at risk if beneficiaries face administrative obstacles in verifying their work status or documenting an exemption.  In addition, some individuals who may be exempt may face challenges in navigating an exemption which could also put coverage at risk.

Top 10 health care surprises of 2017

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https://www.politico.com/story/2017/12/30/trump-health-care-surprises-248996

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President Donald Trump stormed into office last January confident that he could knock off Obamacare in a nanosecond. It didn’t turn out that way — and from drug prices to the Tom Price travel scandal, a lot of health policy didn’t go according to plan. Here’s a look at 10 health care surprises from 2017.

1. Obamacare survives its seventh year

In control of the White House and both chambers of Congress, Republicans had their best shot ever at Obamacare repeal — and even thought they could have it on Trump’s desk on Inauguration Day. The grand ambitions quickly met roadblocks. Members rebelled over policy details, GOP leaders struggled to find consensus, moderates mutinied, and virtually the entire health care industry — along with Democrats and Obamacare advocates — lined up against every plan that Republicans put forward.

Even so, the GOP eventually squeaked a bill through the House and after several false starts put a proposal on the Senate floor. That’s when Sen. John McCain (R-Ariz.) delivered perhaps the biggest stunner of the year: a late-night thumbs-down that sunk the Senate bill and effectively ended the GOP’s repeal effort … until 2018.

Still, Senate Republicans concede that with an even narrower vote margin, dismantling Obamacare may become, as Sen. Ron Johnson (R-Wis.) delicately put it, “a little more difficult.”

2. Price jets away from HHS

After years of railing against Obamacare as a member of Congress, Tom Price finally got a chance to do something about it as Health and Human Services secretary. The former orthopedic surgeon would aid Republicans’ effort to repeal the law while simultaneously unraveling Obamacare’s web of regulations. He fell short on both counts. Price all but disappeared during the Senate’s bid to craft a repeal bill, frustrating Republicans and, more importantly, the president. Soon after, POLITICO revealed that he had routinely traveled by chartered private or military aircraft, costing taxpayers $1 million.

The scrutiny over his travel habits, combined with Trump’s irritation on Affordable Care Act repeal, sped Price’s resignation seven months into the job. He left few tangible accomplishments — other than the distinction of being the first Cabinet member to make his exit.

3. Tough talk and no action on drug prices

Trump lobbed insults at a host of health care targets, but perhaps none landed with more rhetorical force than his denunciations of the “disastrous” drug industry.

“The drug companies, frankly, are getting away with murder,” he seethed early on, suggesting he might empower Medicare to negotiate with pharmaceutical companies.

It didn’t happen. For all of Trump’s tough talk, he’s made no concrete moves toward cracking down on pharmaceutical prices. A promised executive order never materialized — and a leaked draft of the directive appeared largely pharma-friendly anyway.

In November, Trump nominated Alex Azar, a former pharmaceutical executive, to serve as his next HHS secretary. Azar has already rejected sweeping changes to rein in drug prices, like allowing drug reimportation or giving Medicare greater negotiating power. The administration’s agenda on drug prices now looks smaller, more traditional, and far less of a threat to the pharmaceutical industry.

4. GOP kills the individual mandate — in a tax bill

For all their failures on repealing and replacing Obamacare, Republicans did land a major blow — it just took a tax bill to get the job done. The GOP’s sweeping tax overhaul zeroes out the penalty levied on most people for not purchasing insurance starting in 2019, effectively gutting Obamacare’s individual mandate.

Republicans had long made the mandate a top target for repeal. But it’s also a pillar of the health law — the mechanism that Obamacare supporters contend is crucial to keeping enough healthy people in the market to stabilize premiums.

Yet, in a twist, Senate Republicans who months earlier proved too skittish to dismantle Obamacare jumped at the chance to eliminate the mandate, despite Congressional Budget Office projections that it would drive up premiums 10 percent and leave 13 million more people uninsured over the next decade.

With just 12 days left in a year they’d vowed was Obamacare’s last, Republicans passed their tax bill — and in the process, made their only major legislative change to the health law.

5. Planned Parenthood’s funding goes untouched

The GOP’s sweep into power also placed Republicans on the verge of accomplishing a second top health care goal: defunding Planned Parenthood. Once again, Republicans found themselves foiled by their own members. Moderate Sens. Lisa Murkowski (R-Alaska) and Susan Collins (R-Maine) used their leverage as Senate swing votes to protect the funding of an organization they ardently support.

When McCain joined them in voting down repeal in July, it also put the defunding efforts on hold indefinitely. And now facing only a two-vote advantage in the Senate in 2018, it’s unclear whether the GOP can find the political will to take federal action against Planned Parenthood.

6. The vaccine controversy that never was

When high-profile vaccine skeptic Robert Kennedy Jr. traveled to New York in January to meet with Trump, it looked like the start of a controversial plan to boost the scientifically disproved theory that vaccines can cause autism. Trump had previously suggested vaccines could be dangerous, and Kennedy emerged from Trump Tower touting plans to chair “a commission on vaccine safety and scientific integrity” at the president-elect’s behest.

“President-elect Trump has some doubts about the current vaccine policies and has questions about it,” Kennedy said.

But Trump’s team never confirmed Kennedy’s assertions, and after Inauguration Day any momentum for a vaccine commission appeared to fizzle out. The chiefs of the administration’s Food and Drug Administration, Centers for Disease Control and Prevention and National Institutes of Health all advocate for vaccines, and there hasn’t been a peep from the White House so far about taking any close look at vaccine safety beyond the normal regulatory oversight.

7. Single payer gets serious

At this time last year, single-payer health care was a progressive pipe dream. Now it’s a rallying point for liberal Democrats, a possible litmus test for 2020 hopefuls and a serious policy proposal that’s won the backing of nearly a third of the Senate Democratic Caucus.

Sen. Bernie Sanders’ universal health care plan vaulted into the mainstream in September, after high-profile Democrats trying to strike a contrast to the GOP’s Obamacare repeal efforts latched onto the goal of universal coverage.

“Quality health care shouldn’t be the providence of people’s wealth. It should be a virtue of us being United States citizens,” Sen. Cory Booker (D-N.J.), one of several likely 2020 candidates backing the plan, said at the time.

The single-payer push exposed divisions over how exactly to achieve universal coverage, and several Democrats have put forth their own ideas on how to move more gradually. But the shift in the Democratic platform is clear: Three years after Sanders (I-Vt.) failed to win a single co-sponsor for his plan, universal health care is becoming a defining issue for Democrats in the run-up to 2020.

8. Medicaid as a wedge issue

In a year that was supposed to be all about Obamacare, Congress spent much of its time on Medicaid. The GOP’s Obamacare repeal bills all targeted the low-income health insurance program as well. Their proposals would have profoundly changed the nature of Medicaid — not just the expansion that was part of Obamacare but the traditional parts that predated the ACA by decades.

That’s where the GOP’s health care effort hit perhaps its most intense resistance, as Medicaid — traditionally overshadowed by Medicare — suddenly became a third rail. Democrats seized on projections that capping federal funding would drive deep coverage losses and leave the nation’s most vulnerable worse off. State governors on both sides of the aisle warned that the changes would cripple their ability to deliver crucial services. Swing vote Republicans balked at deep cuts at a time when Medicaid offered the first line of defense against the growing opioid epidemic.

That hasn’t stopped the GOP from taking on Medicaid in other ways. The Trump administration is encouraging states to impose work requirements and has made entitlement and welfare reform — both of which could involve Medicaid — a priority for 2018.

9. Shkreli goes to jail over Hillary’s hair

That Martin Shkreli will finish off this year from prison isn’t a surprise — but it’s what put him there that was unexpected.

The former Turing Pharmaceutical CEO, who gained notoriety for hiking the price of an AIDS drug, was convicted of securities fraud in August. But he was living freely while awaiting sentencing until he offered $5,000 on Facebook for a strand of then-presidential candidate Hillary Clinton’s hair. The post qualified as a “solicitation of assault,” a judge ruled, before revoking Shkreli’s bond and sending him to prison.

It’s just one of many strange twists in Shkreli’s saga, which included calling congressmen “imbeciles” on Twitter hours after refusing to answer questions at a House committee hearing; livestreaming on YouTube for hours on end, including right after his conviction; and purchasing the sole copy of a 2015 Wu-Tang Clan album for more than $1 million. He’ll now serve jail time over his request for Clinton’s hair until a mid-January sentencing hearing.

10. Collins, Murkowski play power brokers in the Senate

The most moderate members in a Republican Conference that narrowly controls the Senate, Collins and Murkowski were always going to be crucial players. But GOP leaders may not have anticipated just how much they’d flex that power.

Collins and Murkowski held out throughout the repeal effort over Medicaid cuts and skimpier subsidies they worried would hurt their states — and tanked a top GOP priority. At the end of the day, both voted for the big tax bill, with its individual mandate repeal. Collins got a promise from Senate leaders that two ACA stabilization bills would be included in Congress’ year-end spending agreement — though the bill have been pushed into 2018 and are in trouble, given the House opposition.

With Republicans’ margin in the Senate set to narrow to just 51-49 next year, Collins and Murkowski appear set to exercise even more influence over the party’s direction come 2018.

 

Five key decisions for the GOP on healthcare

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http://thehill.com/policy/healthcare/366528-five-key-decisions-for-the-gop-on-healthcare

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Republicans have repealed ObamaCare’s individual mandate, but they still have a number of decisions to make on health care in the coming year.

Even without the unpopular mandate, the health care law is still largely in effect, with nearly 9 million people enrolled in private plans for 2018.

And beyond ObamaCare, Republicans could seek action on entitlement reform and drug pricing in 2018.

Here are five things to watch out for.

Will Republicans try again to repeal ObamaCare? 

After Republicans failed to act on a seven-year promise to repeal and replace ObamaCare, they assured voters they would return to the issue after passing tax reform.

But now that the tax law is on the books, it’s far from certain that Republicans will make another run at the Affordable Care Act. With the GOP’s Senate majority set to shrink in January, repeal might be off the table for now.

“Well, we obviously were unable to completely repeal and replace with a 52-48 Senate,” Senate Majority Leader Mitch McConnell told NPR on Thursday.

“We’ll have to take a look at what that looks like with a 51-49 Senate. But I think we’ll probably move on to other issues.”

But McConnell could face pressure from more conservative Senate Republicans — and possibly from the House — to revisit health care, no matter how steep the challenge.

“To those who believe — including Senate Republican leadership — that in 2018 there will not be another effort to Repeal and Replace Obamacare — well you are sadly mistaken,” Sen. Lindsay Graham (R-S.C.), author of the most recent repeal bill, tweeted last week.

Will Congress act to stabilize ObamaCare? 

Sens. Susan Collins (R-Maine) and Lamar Alexander (R-Tenn.) have been pushing for a vote on two bipartisan bills to stabilize ObamaCare’s insurance markets, but those efforts were pushed off until next year.

McConnell assured Collins the bills would be attached to a “must-pass” bill by the end of 2017, but that changed as Republicans scrambled to avoid a government shutdown.

Now Senate Republicans are looking to attach the ObamaCare bills to the long-term spending bill that is expected to come up for a vote in January.

But passing the ObamaCare bills is far from certain, with House Republicans demanding the inclusion of Hyde Amendment language to prevent any federal money from going to plans that cover abortions.

House Republicans have also been critical of the overall substance of the bills, arguing they’re a “bail out” of a failing law.

It’s unclear whether House Republicans would support a spending bill that contains the ObamaCare bills, but many have said they definitely won’t if the abortion language isn’t included.

Sen. Mike Rounds (R-S.C.) said Senate Republicans are looking at ways to resolve the issue, and Alexander said he’s optimistic about the bills passing in January.

“We have the president’s renewed interest, more interest from the House, Senate McConnell has renewed his commitment to schedule it and support it, so I think it’s just a matter of when we come back, putting out ideas together and finding a way to get it done,” Alexander told reporters.

Will Republicans try to tackle entitlements?

Speaker Paul Ryan (R-Wis.) has said Republicans should move to entitlement reform next year, citing the need to address the nation’s red ink.

“We’re going to have to get back next year at entitlement reform, which is how you tackle the debt and the deficit,” Ryan told the Ross Kaminsky radio talk show earlier this month.

While there’s broad support in the GOP for taking up welfare reform, changes to entitlement programs like Medicare and Social Security could be a tough sell.

McConnell has noted that a slim Republican majority in the Senate could put broader entitlement reform out of reach.

“The sensitivity of entitlements is such that you almost have to have a bipartisan agreement in order to achieve a result,” McConnell said at a press conference Friday.

“The only time we’ve been able to do that is on a bipartisan basis, and it was a long time ago.”

Entitlement cuts could also be politically dangerous for Republicans leading into the 2018 midterms.

Will Trump try to help ObamaCare? 

Democrats have accused the Trump administration of trying to sabotage ObamaCare by slashing the law’s advertising and outreach budget and cutting open enrollment in half.

But those actions seemed to have a minimal effect on enrollment. The administration said 8.8 million people signed up for coverage in the exchanges this year, which is only a slight drop from the 9.2 million people who signed up last year.

Democrats say these numbers show the resiliency of the law.

“[The] enrollment numbers make clear that the American people want access to high quality, affordable health insurance coverage, and they want Congress and the Administration to stop playing games with our health care system,” said Rep. Frank Pallone (D-N.Y.), ranking member of the House Energy & Commerce Committee.

Trump indicated on Tuesday that his administration still intends on repealing and replacing ObamaCare, however.

“Based on the fact that the very unfair and unpopular individual mandate has been terminated as part of our tax cut bill, which essentially repeals (over time) ObamaCare, the Democrats & Republicans will eventually come together and develop a great new HealthCare plan!”

Will Trump take action on drug prices? 

Trump came out swinging against drug companies when he took office in January, declaring that the industry is getting away with murder, but so far has taken little action on drug prices.

The administration has been preparing an executive order aimed at lowering drug prices since the summer, but critics argue the order would be friendly to drug companies.

Trump has also abandoned campaign promises to allow Medicare to negotiate drug prices and expand importation of cheaper drugs from other countries.

However, Alex Azar, a former drug executive and Trump’s nominee to lead the Department of Health and Human Services, has said that addressing h drug prices will be one of his top priorities if he’s confirmed.

“I believe I can hit the ground running to work with you and others to identify solutions here,” Azar told senators during his confirmation hearing.

 

Words banned at CDC were also banned at other HHS agencies: report

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Words banned at CDC were also banned at other HHS agencies: report

Words banned at CDC were also banned at other HHS agencies: report

Multiple agencies in the Department of Health and Human Services (HHS) have reportedly been told by the Trump administration that they cannot use certain phrases in official documents.

Officials from two HHS agencies, who asked that their names and agencies remain anonymous, told The Washington Post that they had been given a list of “forbidden” words similar to the one given to the Centers for Disease Control and Prevention (CDC).

A second HHS agency was told not to use the phrases “entitlement,” “diversity” and “vulnerable,” in documents. It was also told to use “ObamaCare” as opposed to the “Affordable Care Act” and to refer to “marketplaces,” where people purchase health insurance, as “exchanges.”

The Post’s new report builds on its Friday report that the CDC had been told it could no longer use the phrases “evidence-based” and “science-based” in documents being prepared for the 2019 budget.

The list of “forbidden” words and phrases given to policy analysts at the CDC also included “vulnerable,” “entitlement,” “diversity,” “transgender” and “fetus.”

The Health and Human Services Department has pushed back on the first report.

“The assertion that HHS has ‘banned words’ is a complete mischaracterization of discussions regarding the budget formulation process,” HHS spokesman Matt Lloyd told The Hill on Saturday.

“HHS will continue to use the best scientific evidence available to improve the health of all Americans. HHS also strongly encourages the use of outcome and evidence data in program evaluations and budget decisions,” the statement continued.

According to the Post, similar guidance on word choice has been issued at the State Department. Employees at the State Department have been told to call sex education “sexual risk avoidance,” which primarily refers to abstinence-only education.

The Trump administration has been repeatedly scrutinized for declining to acknowledge scientific findings, particularly related to climate change. Trump has also repeatedly expressed doubts about the scientific consensus that humans are the main cause of a warming planet. Numerous members of his administration and his appointees have also denied aspects of the scientific consensus related to global warming.

 

CDC director tells staff ‘there are no banned words,’ while not refuting report

 

 

 

 

Congress floats temporary patch for CHIP funding shortfalls

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In its short-term appropriations bill, Congress has included a provision aimed at helping states keep their Children’s Health Insurance Programs afloat while lawmakers try to pass a longer-term measure. But that gesture may not go nearly far enough.

The bill would direct the secretary of Health and Human Services to allocate previously unused CHIP funding first to “emergency shortfall states”—or ones that are in danger of running out of money—before other states. The federal government has already been redistributing funding from past years to states that were facing shortfalls in October and November.

Those shortfalls exist because federal funding for CHIP expired Sept. 30, and Congress’ efforts to pass funding reauthorization measure have been stalled by partisan disputes over how to pay for it. The Senate Finance Committee has advanced its version of a CHIP bill—which doesn’t outline any offsets—while a companion bill, containing cuts to other healthcare programs, cleared the House despite Democrats’ objections.

If Congress fails to pass a long-term CHIP funding measure, at least five states and the District of Columbia predict they will run out of money for the program by the end of 2017 or early in January, according to a survey from the Georgetown University’s Center for Children and Families. Some states have already sent notices to families advising them to start researching private health insurance options.

The center’s executive director, Joan Alker, also isn’t impressed by the CHIP provision in the short-term appropriations bill, calling it a sign Congress is trying to “kick the can down the road.”

“The longer Congress postpones action on long-term CHIP funding, the more states will be forced to waste time and money developing contingency plans,” she wrote in a blog post, adding, “the more states that send out notices, the more likely it will be that some kids will fall through the cracks.”

Ambulance trips can leave you with surprising — and very expensive — bills

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https://www.washingtonpost.com/national/health-science/ambulance-trips-can-leave-you-with-surprising–and-very-expensive–bills/2017/11/17/6be9280e-c313-11e7-84bc-5e285c7f4512_story.html?tid=ss_tw-bottom&utm_term=.78d3dfa36d97

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One patient got a $3,660 bill for a four-mile ride. Another was charged $8,460 for a trip from a hospital that could not handle his case to another that could. Still another found herself marooned at an out-of-network hospital, where she’d been taken by ambulance without her consent.

These patients all took ambulances in emergencies and got slammed with unexpected bills. Public outrage has erupted over surprise medical bills — generally out-of-network charges that a patient did not expect or could not control — prompting 21 states to pass laws over the years protecting consumers in some situations. But these laws largely ignore ground ambulance rides, which can leave patients stuck with hundreds or even thousands of dollars in bills and with few options for recourse, finds a Kaiser Health News review of 350 consumer complaints in 32 states.

Patients usually choose to go to the doctor, but they are vulnerable when they call 911 or get into an ambulance. The dispatcher picks the ambulance crew, which may be the local fire department or a private company hired by the municipality. The crew, in turn, often picks the hospital. Moreover, many ambulances are not summoned by patients, but by police or a bystander.

Betsy Imholz, special projects director at the Consumers Union, which has collected more than 700 patient stories about surprise medical bills, said at least a quarter concern ambulances.

“It’s a huge problem,” she said.

Forty years ago, most ambulances were free for patients, provided by volunteers or town fire departments using taxpayer money, said Jay Fitch, president of Fitch & Associates, an emergency services consulting firm. Today, ambulances are increasingly run by private companies and venture capital firms. Ambulance operators now often charge by the mile and sometimes for each “service,” such as providing oxygen. If the ambulance is staffed by paramedics rather than emergency medical technicians, that will result in a higher charge — even if the patient didn’t need paramedic-level services. Charges range from zero to thousands of dollars.

The core of the problem is that ambulance companies and private insurers often can’t agree on a fair price, so the ambulance service doesn’t join the insurer’s network. That leaves patients stuck with out-of-network charges that are not negotiated, Imholz said.

This happens to patients frequently, according to a recent study of more than half a million ambulance trips taken by patients with private insurance in 2014. The study, by two staffers at the Federal Trade Commission, found that 26 percent of these trips were billed on an out-of-network basis.

That figure is “quite jarring,” said Loren Adler, co-author of a recent report on surprise billing.

The KHN review of complaints revealed two common scenarios leaving patients in debt: First, patients get into an ambulance after a 911 call. Second, an ambulance transfers them between hospitals. In both scenarios, patients later learn the fee is much higher because the ambulance was out-of-network, and after the insurer pays what it deems fair, they get a surprise bill for the balance, also known as a “balance bill.”

The Better Business Bureau has received nearly 1,200 consumer complaints about ambulances in the past three years; half were related to billing, and 46 mentioned out-of-network charges, spokeswoman Katherine Hutt said.

While the federal government sets reimbursement rates for patients on Medicare, it does not regulate ambulance fees for patients with private insurance. Those patients are left with a highly fragmented system in which the cost of a similar ambulance trip can vary widely from town to town. There are about 14,000 ambulance services across the country, run by governments, volunteers, hospitals and private companies, according to the American Ambulance Association. (The Washington area reflects that mix.)

For a glimpse into the unpredictable system, consider the case of Roman Barshay. The 46-year-old software engineer, who lives in Brooklyn, was visiting friends in the Boston suburb of Chestnut Hill last November when he took a nasty fall.

Barshay felt a sharp pain in his chest and back, and he had trouble walking. An ambulance crew responded to a 911 call at his friends’ house and drove him four miles to Brigham and Women’s Hospital, taking his blood pressure as he lay down in the back. Doctors there determined he had sprained tendons and ligaments and a bruised foot, and released him after about four hours, he said.

After Barshay returned to Brooklyn, he got a bill for $3,660, or $915 for each mile of the ambulance ride. His insurance had covered nearly half, leaving him to pay the remaining $1,890.50.

“I thought it was a mistake,” Barshay said.

But Fallon Ambulance Service, the private company that brought him to the hospital, was out-of-network for his UnitedHealthcare insurance plan.

“The cost is outrageous,” said Barshay, who reluctantly paid the bill after Fallon sent it to a collection agency. If he had known what the ride would cost, he said, he would at least have been able to refuse the ride and “crawl to the hospital myself.”

In a statement, UnitedHealthcare said: “Out-of-network ambulance companies should not be using emergencies as an opportunity to bill patients excessive amounts when they are at their most vulnerable.”

“You feel horribly to send a patient a bill like that,” said Peter Racicot, senior vice president of Fallon, a family-owned company based outside Boston.

But ambulance firms are “severely underfunded” by Medicare and Medicaid, Racicot said, so Fallon must balance the books by charging higher rates for patients with private insurance.

Racicot said his company has not contracted with Barshay’s insurer because they couldn’t agree on a fair rate. When insurers and ambulance companies can’t agree, he said, “unfortunately, the subscribers wind up in the middle.”

It’s also unrealistic to expect EMTs and paramedics at the scene of an emergency to determine whether their company takes a patient’s insurance, Racicot added.

Ambulance services must charge enough to subsidize the cost of keeping their crews ready around the clock, said Fitch, the ambulance consultant. In a third of the cases where an ambulance crew answers a call, he added, they end up not transporting anyone and the company typically isn’t reimbursed for the trip.

In part, Barshay had bad luck. If his injury had happened just a mile away — inside Boston’s city limits — he could have ridden a city ambulance, which would have charged $1,490, according to Boston EMS, a sum that his insurer probably would have covered in full.

Very few states have laws limiting ambulance charges, and most state laws that protect patients from surprise billing do not apply to ground ambulance rides, according to Brian Werfel, a consultant to the American Ambulance Association. And none of the surprise-billing protections apply to people with self-funded employer-sponsored health insurance plans, which are regulated only by federal law. That’s a huge exception: 61 percent of privately insured employees are covered by self-funded employer-sponsored plans.

Some towns that hire private companies to respond to 911 calls may regulate fees or prohibit balance billing, Werfel said, but each locality is different.

Insurers try to protect patients from balance billing by negotiating rates with ambulance companies, said Cathryn Donaldson, a spokeswoman for America’s Health Insurance Plans. But “some ambulance companies have been resistant to join plan networks” that offer Medicare-based rates, she said.

Medicare rates vary widely by geographic area. On average, ambulance services make a small profit on Medicare payments, according to a report by the Government Accountability Office. If a patient uses a basic life support ambulance in an emergency in an urban area, for instance, Medicare payments range from $324 to $453, plus $7.29 per mile. Medicaid rates tend to be significantly lower.

There’s evidence of waste and fraud in the ambulance industry, Donaldson added, citing a study from the Office of Inspector General at the Department of Health and Human Services. The report concluded that in 2012 Medicare paid more than $50 million in improper ambulance bills, including for supposedly emergency-level transport that ended at a nursing home, not a hospital. One in 5 ambulance services had “questionable billing” practices, said the report, which noted that Medicare spent $5.8 billion on ambulance transport that year.

Most complaints reviewed by Kaiser Health News did not appear to involve fraudulent charges. Instead, patients got caught in a system in which ambulance services can legally charge thousands of dollars for a single trip — even when the trip starts at an in-network hospital.

That’s what happened to Devin Hall, a 67-year-old retired postal inspector in Northern California. While he faces Stage 3 prostate cancer, Hall is also fighting a $7,109.70 bill from American Medical Response, the nation’s largest ambulance provider.

On Dec. 27, 2016, Hall went to a local hospital with rectal bleeding. Because the hospital didn’t have the right specialist to treat his symptoms, it arranged for an ambulance ride to another hospital about 20 miles away. Even though the hospital was in his network, the ambulance was not.

Hall was stunned to see that AMR billed $8,460 for the trip. His federal health plan, the Special Agents Mutual Benefit Association, paid $1,350.30 and held Hall responsible for $727.08, records show. (According to his plan’s explanation of benefits, it paid that amount because AMR’s charges exceeded the plan’s Medicare-based fee schedule, which is based on Medicare rates.) But AMR turned his case over to a debt collector, Credence Resource Management, which sent an Aug. 25 notice seeking the full balance of $7,109.70.

“These charges are exorbitant — I just don’t think what AMR is doing is right,” said Hall, noting that he had intentionally sought treatment at an in-network hospital.

He has spent months on the phone calling the hospital, his insurer and AMR trying to resolve the matter. Given his prognosis, he worries about leaving his wife with a legal fight and a lien on their Brentwood, Calif., house for a debt they shouldn’t owe.

After being contacted by Kaiser Health News, AMR said it pulled Hall’s case from collections while it reviews the billing. After further review, company spokesman Jason Sorrick said the charges were warranted because it was a “critical care transport, which requires a specialized nurse and equipment on board.”

Sorrick faulted Hall’s health plan for underpaying, and said Hall could receive a discount if he qualifies for AMR’s “compassionate care program” based on his financial and medical situation.

“In this case, it appears the patient’s insurance company simply made up a price they wanted to pay,” Sorrick said.

In July, a California law went into effect that protects consumers from surprise medical bills from out-of-network providers, including some ambulance transport between hospitals. But Hall’s case occurred before that, and the state law doesn’t apply to him because of his federal insurance plan.

The consumer complaints reviewed by Kaiser Health News reveal a wide variety of ways that patients are left fighting big bills:

• An older patient in California said debt collectors called incessantly, including on Sunday mornings and at night, demanding an extra $500 on top of the $1,000 that his insurance had paid for an ambulance trip.

• Two ambulance services responded to a New Jersey man’s 911 call when he felt burning in his chest. One of them charged him $2,100 for treating him on the scene for less than 30 minutes — even though he never rode in that company’s ambulance.

• A woman who rolled over in her Jeep in Texas was charged a $26,400 “trauma activation fee” — a fee triggered when the ambulance service called ahead to the emergency department to assemble a trauma team. The woman, who did not require trauma care, fought the hospital to get the fee waived.

In other cases, patients face financial hardship when ambulances take them to out-of-network hospitals. Patients don’t always have a choice in where to seek care; that’s up to the ambulance crew and depends on the protocols written by the medical director of each ambulance service, said Werfel, the ambulance association consultant.

Sarah Wilson, a 36-year-old microbiologist, had a seizure at her grandmother’s house in rural Ohio on March 18, 2016, the day after having hip surgery at Akron City Hospital. When her husband called 911, the private ambulance crew that responded refused to take her back to Akron City Hospital, instead driving her to an out-of-network hospital that was 22 miles closer. Wilson refused care because the hospital was out-of-network, she said.

Wilson wanted to leave. But “I was literally trapped in my stretcher,” without the crutches she needed to walk, she said. Her husband, who had followed by car, wasn’t allowed to see her right away. She ended up leaving against medical advice at 4 a.m. She landed in collections for a $202 hospital bill for a medical examination, a debt that damaged her credit score, she said.

Ken Joseph, chief paramedic of Emergency Medical Transport, the private ambulance company that transported Wilson, said company protocol is to take patients to the “closest appropriate facility.” Serving a large area with just two ambulances, the company has to get each ambulance back to its station quickly so it can be ready for the next call, he said.

Patients such as Wilson are often left to battle these bills alone, because there are no federal protections for patients with private insurance.

Rep. Lloyd Doggett (D-Texas), who has been pushing for federal legislation protecting patients from surprise hospital bills, said in a statement that he supports doing the same for ambulance bills.

Meanwhile, patients do have the right to refuse an ambulance ride, as long as they are older than 18 and mentally capable.

“You could just take an Uber,” said Adler, co-author of the surprise-billing report. But if you need an ambulance, there’s little recourse to avoid unexpected bills, he said, “other than yelling at the insurance company after the fact, or yelling at the ambulance company.”

CMS Cut to Outpatient Drugs Will Hit Some 340B Hospitals Hard

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The 340B program is intended to help safety net hospitals, but some others have taken advantage. A lack of transparency and accounting led to deep cuts for all participants.

Hospitals receiving drug discounts will take a big financial hit in January when the federal government sharply reduces the Medicare payment for outpatient drugs, effectively cutting a subsidy that some hospitals use to provide needed medications to those who cannot afford them.

The affected hospitals are bracing for a significant drain on their bottom lines, and some serve the neediest populations. However, some other hospitals have used the program to increase profits rather than to help underserved populations.

The U.S. Department of Health and Human Services, Centers for Medicare & Medicaid Services released a final Medicare Outpatient Prospective Payment System (OPPS) ruleNovember 1 that cuts Medicare reimbursement for separately payable outpatient drugs purchased by hospitals under the 340B program, which helps certain hospitals and other healthcare entities pay for covered outpatient drugs. The 340B program requires pharmaceutical companies to sell drugs to these hospitals at a discount, but CMS reimburses the hospitals as if there were no discount.

CMS will cut the reimbursement rate from the current average sales price (ASP) plus 6% to ASP minus 22.5%, starting January 1, 2018.

CMS estimates that the change will result in a $1.6 billion reduction in OPPS payments to 340B hospitals for separately payable drugs. The new reimbursement rate was derived from a May 2015 Medicare Payment Advisory Commission (MedPAC) Report to Congress, which estimated that the ASP minus 22.5% rate was the “lower bound of the average discount” on drugs paid under the Medicare OPPS. However,MedPAC’s March 2016 Report to Congress recommended a less drastic reduction in payment to ASP minus 10%. Under that rate, most 340B hospitals could still see a financial benefit from the program.

Instead, the adopted rate will negatively affect all 340B hospitals, says Keely Macmillan, general manager of bundled payments for care improvement with Archway Health, a Boston-based firm that works with providers to manage bundled payments.

Trump and the Essential Health Benefits

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Trump and the Essential Health Benefits

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On Friday, HHS released a proposed rule that would make a number of adjustments to the rules governing insurance exchanges for 2019. The rule is long and detailed; there’s a lot to digest. Among the most noteworthy changes, however, are those relating to the essential health benefits. They’re significant, and I’m not convinced they’re legal.

By way of background, the ACA requires all health plans in the individual and small-group markets to cover a baseline roster of services, including services falling into ten broad categories (e.g., maternity care, prescription drugs, mental health services). Taken as a whole, the essential health benefits must be “equal to the scope of benefits provided under a typical employer plan, as determined by the Secretary.”

The ACA’s drafters anticipated that HHS would establish a national, uniform slate of essential health benefits. Instead, the Obama administration opted to allow the states to select a “benchmark plan” from among existing plans in the small group market (or from plans for state employees). The benefits covered under the benchmark were then considered “essential” within the state.

At the time, Helen Levy and I concluded that HHS’s approach brushed up against the limits of what the law allowed. We noted, among other things, that the ACA tells HHS to establish the essential health benefits—not the states. And it’s black-letter administrative law that an agency can’t subdelegate its powers to outside entities, states included.

At the end of the day, however, Helen and I concluded that the Obama-era regulation passed muster. Our rationale bears repeating:

Although a federal agency cannot delegate its powers to the states, it “may turn to an outside entity for advice and policy recommendations, provided the agency makes the final decisions itself.” Here, the secretary gave the states a constrained set of options (e.g., choose a benchmark plan from among the three largest small-group plans in the state) and retained the authority to select a benchmark for any state that either does not pick a benchmark or chooses an inappropriate one. As such, the secretary remains firmly in control. Nothing in the ACA prevents her from deferring to states that select benchmark plans from among the few options she has provided. That choice to defer is itself an exercise of her delegated powers.

The Trump administration’s proposed rule would vastly enlarge this Obama-era subdelegation. For starters, the rule would allow a state to adopt another state’s benchmark, or part of a state’s benchmark, as its own. Michigan, for example, could borrow Alabama’s benchmark plan wholesale, or it could incorporate Alabama’s benchmark for mental health and substance use disorder treatment. More significantly, the rule would allow a state to “selec[t] a set of benefits that would become the State’s EHB-benchmark plan.”

You read that right: if the rule is adopted, each state can pick whatever essential health benefits it likes. No longer will it be choosing from a preselected menu; it’ll be picking the essential benefits out of a hat. In so doing, the proposed rule looks like it would unlawfully cede to the states the power to establish the essential benefits.

This extraordinary subdelegation of regulatory authority is subject only to the loosest of constraints: benefits can’t be “unduly weighted” toward any one benefit category or another, and the benchmark must “[p]rovide benefits for diverse segments of the population, including women, children, persons with disabilities, and other groups.” The selected benefits also can’t be more generous than the state’s 2017 benchmark (or any of the plans the state could have selected as its benchmark), but that’s a ceiling, not a floor, so states have lots of room to pare back.

The only meaningful constraint is that the benefits covered by the state’s benchmark must be “equal to the scope of benefits provided under a typical employer plan.” But another portion of the proposed rule would hollow out that requirement:

[W]e propose to define a typical employer plan as an employer plan within a product (as these terms are defined in §144.103 of this subchapter) with substantial enrollment in the product of at least 5,000 enrollees sold in the small group or large group market, in one or more States, or a self-insured group health plan with substantial enrollment of at least 5,000 enrollees in one or more States.

In other words, HHS is saying it will treat as “typical” any employer plan, in any state, that covers more than 5,000 people.

This looks like an innocuous change. It’s not. If the rule is adopted, it means that a single outlier plan can now count as typical, even if it’s way stingier than any other plan in the market. It also makes me wonder if HHS already has in mind some large employer with an unusually narrow health plan—maybe some hospital-based “administrative services only” plan, as Dave Anderson speculates. If so, voilá, the states can all ratchet down their essential benefits to that plan’s level.

I don’t think that’s legal. To know if a slate of health benefits is typical, you have to know something about how many health plans cover those benefits and how many don’t. The proposed rule eschews that comparative inquiry, and instead defines typicality with reference to the number of people who are covered by a single plan. Some random self-insured plan that excludes appendectomies could be treated as typical, even if it’s the only plan in the nation that does so.

In other words, HHS wants to define a “typical employer plan” to include atypical plans—which the agency emphatically cannot do. Yes, plans that enroll 5,000+ people are less likely to be outliers than smaller ones. But in a country as big and complicated as ours, there are bound to be some idiosyncratic quirks even in large plans. Those quirks would all be considered typical under HHS’s rule.

This definitional change, combined with the choose-your-own-adventure option to devise a benchmark, means that states will have wide authority to water down the essential health benefits requirement. Whether that’s good or bad is hard to say. Requiring plans to cover lots of services assures comprehensive coverage, but it also raises the cost of insurance. Because there’s no single “best” way to strike the balance, I think there’s a lot to be said for giving states the freedom to choose for themselves.

Wise or not, however, I’m skeptical that the Trump administration’s effort to hollow out the rule governing essential health benefits is legal. If HHS presses ahead with the rule, it could face tough sledding in the courts.