Can States Fill the Gap if the Federal Government Overturns Preexisting-Condition Protections?

https://www.commonwealthfund.org/blog/2019/can-states-fill-gap-preexisting-condition-protections

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Once again, the Affordable Care Act (ACA) is under threat, this time in the form of Texas v. Azar, a federal lawsuit challenging its constitutionality. This litigation, now under consideration by the Fifth Circuit Court of Appeals, took an unexpected turn in March when the U.S. Department of Justice (DOJ) sided with the plaintiffs, urging the Court to strike the ACA down in its entirety.

On May 1, the administration filed a brief in support of this action. But even before this suit, DOJ had refused to defend key provisions that guarantee coverage of preexisting conditions. If the courts agree with the DOJ, it would invalidate every provision of the 2010 law.

As many as 20 million people nationwide would lose their coverage, while millions more could face insurance company denials, premium surcharges, or high out-of-pocket costs because of their health status.

ACA Protections for People with Preexisting Conditions

  • Guaranteed issue. Health insurers are prohibited from denying an individual or employer group a policy based on their health status.
  • Community rating. Health insurers may not use an individual or small employer group’s health status to set premiums.
  • Preexisting condition exclusions. Health insurers and employer group plans are prohibited from refusing to cover services needed to treat a preexisting condition.
  • Essential health benefits. Health insurers selling to individuals and small employers must cover a minimum set of 10 “essential” benefits: ambulatory services; emergency services; hospitalization; maternity and newborn care; mental health and substance use disorder services; prescription drugs; rehabilitative and habilitative services and devices; laboratory services; preventive and wellness services; and pediatric services, including oral and vision care.
  • Cost-sharing protections. Health insurers and employer group plans must cap the amount enrollees pay out-of-pocket for health care services each year.
  • Annual and lifetime limits. Health insurers and employer group plans are prohibited from imposing annual or lifetime dollar limits on essential health benefits.
  • Preventive services. Health insurers and employer group plans are required to cover evidence-based preventive services without any enrollee cost-sharing.
  • Nondiscrimination. Health insurers must implement benefit designs for individuals and small employers that do not discriminate based on age, disability, or expected length of life.

To help blunt potential fallout and prevent adverse effects for millions of individuals, several states are enacting bills to ensure that federal ACA protections become part of state law (see box). However, before the ACA, state efforts to require insurers to cover people with preexisting conditions resulted in large premium spikes and, in some cases, caused insurers to exit the market.

The ACA’s premium subsidies have had a critical stabilizing effect. If those subsidies are invalidated, states will have a hard time restoring them with state dollars. In addition, state regulation of self-funded employer plans is preempted under the federal Employee Retirement Income Security Act (ERISA), meaning the 61 percent of people with this type of job-based coverage can regain their protections under the ACA only if Congress steps in to restore them.

States Are Stepping Up, but Power to Fully Protect Consumers Is Limited

In a previous post, we found that at least four states (Colorado, Massachusetts, New York, and Virginia) had laws that would preserve key ACA preexisting-condition protections if the federal law is overturned. Since that time, seven more states (Connecticut, Hawaii, Indiana, Maine, Maryland,1 New Mexico, and Washington) have acted to preserve the ACA’s protections for their residents.

These bills take different approaches. Maine, New Mexico, and Washington passed comprehensive bills that would preserve all the protections listed above. The Connecticut, Hawaii, and Indiana laws are more narrowly focused. Hawaii and Indiana prohibit insurers from imposing preexisting condition exclusions; Connecticut aligns its benefit standards with the ACA. Maryland took a different approach, creating a workgroup to recommend ways to protect residents if the ACA is struck down. The governors of New Jersey and Rhode Island have issued executive orders directing their state agencies to uphold the ACA’s principles, by guarding against discrimination based on preexisting conditions and strengthening consumer protections to ensure access to affordable coverage.

Looking Forward

The Fifth Circuit Court of Appeals is expected to hear arguments in Texas v. Azar in July. Whatever that court decides, the losing party is likely to ask the Supreme Court to hear the case, and a ruling could come as soon as June 2020. With the future of the ACA hanging in the balance, at least 14 other states are considering legislation codifying some of the federal consumer protections during their 2019 sessions.

 

 

 

A motley crew in Texas v. Azar

https://theincidentaleconomist.com/wordpress/a-motley-crew-in-texas-v-azar/

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Together with Jonathan Adler, Abbe Gluck, and Ilya Somin, I’ve filed an amicus brief with the Fifth Circuit in Texas v. Azar. Those of you who’ve been closely following health-reform litigation know that Abbe and I often square up against Jonathan and Ilya. It’s a testament to the outlandishness of the district court’s decision that we’ve joined forces. Like our original district court filing, the brief focuses on severability.

In 2017, Congress zeroed out all the penalties the ACA had imposed for not satisfying the individual mandate. Yet it left everything else undisturbed, including the guaranteed-issue and community-rating provisions. That simple fact should be the beginning and end of the severability analysis. It was Congress, not a court, that made the mandate unenforceable. And when Congress did so, it left the rest of the scheme, including those two insurance reforms, in place. In other words, Congress in 2017 made the judgment that it wanted the insurance reforms and the rest of the ACA to remain even in the absence of an enforceable individual mandate.

Because Congress’s intent was explicitly and duly enacted into statutory law, consideration of whether the remaining parts of the law remain “fully operative”—an inquiry courts often use in severability analysis as a proxy for congressional intent—is unnecessary.

Nor does the district court’s incessant focus on findings that Congress made about a mandate backed by financial penalties hold water.

The 2010 Congress believed that 2010’s penalty-backed mandate was necessary to induce a significant number of healthy people to purchase insurance, and thereby “significantly reduc[e] the number of the uninsured.” 42 U.S.C. § 18091(2)(E). But because the neutered mandate of 2017 lacks a penalty, it could not have been based on those earlier findings. They are thus irrelevant. The earlier findings have been overtaken by Congress’s developing views—based on years of experience under the statute—that the individual marketplaces created by the ACA can operate without penalizing Americans who decline to purchase health insurance.

At bottom, a toothless mandate is essential to nothing. A mandate with no enforcement mechanism cannot somehow be essential to the law as a whole. That is so regardless of the finer points of severability analysis or congressional intent. The district court’s conclusion makes no sense.

There are (at least!) two other notable amicus briefs in the case.

The first is from Sam Bray, Michael McConnell, and Kevin Walsh. In a terse 1,000 words, they argue—correctly, in my view—that “Congress has not vested the federal courts with statutory subject-matter jurisdiction to opine whether an unenforceable statutory provision is unconstitutional.” In this, they sound many of the same themes that Jonathan Adler and yours truly sounded in arguing that plaintiffs lack standing under the Constitution. But Bray, McConnell, and Walsh hitch their argument not to Article III, but to the jurisdictional reach of the Declaratory Judgment Act.

The second is from the Republican attorneys general of Ohio and Montana. They agree that the mandate is unconstitutional, but they have no truck with the argument that all or part of the Affordable Care Act should be struck down. “At the same time that Congress made the mandate inoperative, it left in place the remainder of the Affordable Care Act. As a result, the application of the severability doctrine in this case requires no ‘nebulous inquiry into hypothetical congressional intent.’ … To the contrary, the Court can see for itself what Congress wanted by looking to what it did.” Their participation suggests deep fractures in the down-with-the-ACA-at-all-costs coalition.

So, by my count, the parties and amici have pressed at least four independent reasons for getting rid of this case. First, because plaintiffs lack standing. Second, because the courts lack jurisdiction under the Declaratory Judgment Act. Third, because there is no “mandate” and thus no constitutional problem (as Marty Lederman has rightly argued). And fourth, because even if there is a mandate and it’s unconstitutional, it’s fully severable.

This isn’t a federal case. It’s a choose-your-own-adventure book where all the adventures lead to the end of this misbegotten litigation.

 

 

 

KFF Health Tracking Poll – January 2019: The Public On Next Steps For The ACA And Proposals To Expand Coverage

https://www.kff.org/health-reform/poll-finding/kff-health-tracking-poll-january-2019/?utm_source=The+Weekly+Gist&utm_campaign=457a985c2e-EMAIL_CAMPAIGN_2019_01_25_01_56&utm_medium=email&utm_term=0_edba0bcee7-457a985c2e-41271793

Key Findings:

  • Half of the public disapproves of the recent decision in Texas v. United States, in which a federal judge ruled that the 2010 Affordable Care Act (ACA) is unconstitutional and should not be in effect. While the judge’s ruling is broader than eliminating the ACA’s protections for people with pre-existing conditions, this particular issue continues to resonate with the public. Continuing the ACA’s protections for people with pre-existing conditions ranks among the public’s top health care priorities for the new Congress, along with lowering prescription drug costs.
  • This month’s KFF Health Tracking Poll continues to find majority support (driven by Democrats and independents) for the federal government doing more to help provide health insurance for more Americans. One way for lawmakers to expand coverage is by broadening the role of public programs. Nearly six in ten (56 percent) favor a national Medicare-for-all plan, but overall net favorability towards such a plan ranges as high as +45 and as low as -44 after people hear common arguments about this proposal.

    Poll: Majorities favor a range of proposed options to expand public health coverage, including Medicare buy-in and #MedicareForAll 

  • Larger majorities of the public favor more incremental changes to the health care system such as a Medicare buy-in plan for adults between the ages of 50 and 64 (77 percent), a Medicaid buy-in plan for individuals who don’t receive health coverage through their employer (75 percent), and an optional program similar to Medicare for those who want it (74 percent). Both the Medicare buy-in plan and Medicaid buy-in plan also garner majority support from Republicans (69 percent and 64 percent­).

 

Figure 1: Most Americans Are Unaware Of Federal Judge’s Ruling That ACA Is No Longer Valid

Texas v. United States: The Future of the Affordable Care Act

On December 14, 2018, a federal district court judge in Texas issued a ruling challenging the future of the 2010 Affordable Care Act (ACA).The judge sided with Republican state attorneys general and ruled that, since the 2017 tax bill passed by Congress zeroed out the penalty for not having health insurance, the ACA is invalid. Democrat attorneys general have already taken actions to appeal the judge’s ruling in the case and, due to the government shutdown, the 5th Circuit Court of Appeals has paused the case. Currently, the ACA remains the law of the land. If this ruling is upheld, the consequences will be far-reaching.1 Less than half of the public (44 percent) are aware of the judge’s ruling that the ACA is unconstitutional and most (55 percent) either incorrectly say that the judge ruled in favor of the ACA (20 percent) or are unsure (35 percent).

Overall, a larger share of the public disapprove (51 percent) than approve (41 percent) of the judge’s ruling that the ACA is not constitutional. This is largely divided by party identification with a majority of Republicans (81 percent) approving of the decision while a majority of Democrats disapproving (84 percent). Independents are closely divided (49 percent disapprove v. 44 percent approve).

Figure 2: Partisans Divided On Whether They Approve Or Disapprove Of Federal Judge’s Ruling That The ACA Is No Longer Valid

The Trump administration had originally announced that as part of Texas v. United States, it would no longer defend the ACA’s protections for people with pre-existing medical conditions. While the judge’s ruling was broader than just the ACA’s pre-existing condition protections, KFF polling finds attitudes can shift when the public hears that these protections may no longer exist. Among those who originally approve of the federal judge’s ruling, about three in ten (13 percent of the public overall) change their mind after hearing that this means that people with pre-existing conditions may have to pay more for coverage or could be denied coverage, bringing the share who disapprove of the judge’s ruling to nearly two-thirds (64 percent) of the public.2

Fewer – but still about one-fifth (8 percent of total) – change their minds after hearing that as a result of this decision, young adults would no longer be able to stay on their parents’ insurance until the age of 26, bringing the total share who disapprove of the judge’s ruling to 60 percent.

Figure 3: Majorities Disapprove Of Judge’s Ruling After Hearing How It Impacts Protections For Pre-Existing Conditions And Young Adults

Overall, a slight majority of the public hold a favorable view of the ACA (51 percent) while four in ten continue to hold unfavorable views. (INTERACTIVE)

Public’s Views of Democratic Health Care Agenda

With the new Democratic majority in the U.S. House of Representatives, this month’s KFF Health Tracking Poll examines the public’s view of Congressional health care priorities including a national health plan.

Proposals to Expand Health Care Coverage

Most of the public favor the federal government doing more to help provide health insurance for more Americans and one way for lawmakers to expand coverage is by broadening the role of public programs, such as Medicare or Medicaid. The Kaiser Family Foundation has been tracking public opinion on the idea of a national health plan since 1998 (see slideshow). More than twenty years ago, about four in ten Americans (42 percent) favored a national health plan in which all Americans would get their insurance from a single government plan. In the decades that followed, there has been a modest increase in support – especially since the 2016 presidential election and Bernie Sanders’ rallying cry for “Medicare-for-all.” The most recent KFF Health Tracking Poll finds 56 percent of the public favor “a national health plan, sometimes called Medicare-for-all, where all Americans would get their insurance from a single government plan” with four in ten (42 percent) opposing such a plan.

Figure 5: Majorities Across Partisans Favor Medicare Buy-In And Medicaid Buy-In

MALLEABILITY IN ATTITUDES TOWARDS NATIONAL HEALTH PLAN AND LINGERING CONFUSION ABOUT POSSIBLE IMPACTS

This month’s KFF Health Tracking Poll finds the net favorability of attitudes towards a national Medicare-for-all plan can swing significantly, depending on what arguments the public hears.

Depending on what arguments people hear, the public’s views of #MedicareForAll can swing from 71% in favor to 70% opposed highlighting the importance of any future legislative debate 

Net favorability towards a national Medicare-for-all plan (measured as the share in favor minus the share opposed) starts at +14 percentage points and ranges as high as +45 percentage points when people hear the argument that this type of plan would guarantee health insurance as a right for all Americans. Net favorability is also high (+37 percentage points) when people hear that this type of plan would eliminate all premiums and reduce out-of-pocket costs. Yet, on the other side of the debate, net favorability drops as low as -44 percentage points when people hear the argument that this would lead to delays in some people getting some medical tests and treatments. Net favorability is also negative if people hear it would threaten the current Medicare program (-28 percentage points), require most Americans to pay more in taxes (-23 percentage points), or eliminate private health insurance companies (-21 percentage points).

Figure 8: Four In Ten Say Medicare-For-All Plan Would Not Have Much Impact On People Like Them

MEDICARE-FOR-ALL AND SENIORS

On October 10th, 2018, President Trump wrote an op-ed in USA Today arguing that a Medicare-for-all plan would “end Medicare as we know it and take away benefits they have paid for their entire lives.”3 One-fourth of adults 65 and older (26 percent) say seniors who currently get their insurance through Medicare would be “worse off” if a national Medicare-for-all plan was put into place. Four in ten Republicans, ages 65 and older, say seniors who currently get health coverage through Medicare would be “worse off” under a national Medicare-for-all plan. Overall, a larger share of the public say a Medicare-for-all plan will “not have much impact” on seniors (39 percent) or say that they would be “better off” (33 percent) than say seniors would be “worse off” (21 percent).

Figure 10: Democrats Want House Democrats To Focus On Improving And Protecting The ACA Rather Than Passing Medicare-For-All

PARTISANS HAVE DIFFERENT HEALTH PRIORITIES FOR CONGRESS, EXCEPT FOR PRESCRIPTION DRUG PRICES

A majority of the public say it is either “extremely important” or “very important” that Congress work on lowering prescription drug costs for as many Americans as possible (82 percent), making sure the ACA’s protections for people with pre-existing health conditions continue (73 percent), and protecting people with health insurance from surprise high out-of-network medical bills (70 percent). Fewer – about four in ten – say repealing and replacing the ACA (43 percent) and implementing a national Medicare-for-all plan (40 percent) are an “extremely important” or “very important” priority. When forced to choose the top Congressional health care priorities, the public chooses continuing the ACA’s pre-existing condition protections (21 percent) and lowering prescription drug cost (20 percent) as the most important priorities for Congress to work on. Smaller shares choose implementing a national Medicare-for-all plan (11 percent), repealing and replacing the ACA (11 percent), or protecting people from surprise medical bills (9 percent) as a top priority. One-fourth said none of these health care issues was their top priority for Congress to work on.

Figure 11: Continuing ACA Pre-Existing Conditions Protections And Prescription Drug Costs Top Public’s Priorities For Congress

Continuing the ACA’s pre-existing condition protections is the top priority for Democrats (31 percent) and ranks among the top priorities for independents (24 percent) along with lowering prescription drug costs, but ranks lower among Republicans (11 percent). Similar to previous KFF Tracking Polls, repealing and replacing the ACA remains one of the top priority for Republicans (27 percent) along with prescription drug costs (20 percent).

Table 1: Pre-Existing Condition Protections and Prescription Drug Costs Top Public’s Health Care Priorities for Congress; Republicans Still Focused on ACA Repeal
Percent who say the following is the top priority for Congress to work on: Total Democrats Independents Republicans
Making sure the ACA’s pre-existing condition protections continue 21% 31% 24% 11%
Lowering prescription drug costs for as many Americans as possible 20 20 20 20
Implementing a national Medicare-for-all plan 11 20 8 3
Repealing and replacing the ACA 11 3 7 27
Protecting people from surprise high out-of-network medical bills 9 4 10 8
Note: If more than one priority was chosen as “extremely important,” respondent was forced to choose which priority was the “most important.”

The Role of Independents in the Democratic Health Care Debate

One of the major narratives coming out of the 2018 midterm elections was the role that health care was playing in giving Democratic candidates the advantage in close Congressional races. Consistently throughout the election cycle, KFF polling found health care as the top campaign issue for both Democratic and independent voters. While a majority of Democrats want the new Democratic majority in the U.S. House of Representatives to focus on improving and protecting the ACA, Democratic-leaning independents have more divided opinions of the future of 2010 health care law. These individuals – who tend to be younger and male – would rather Democrats in Congress focus efforts on passing a national Medicare-for-all plan (54 percent) than improving the ACA (39 percent) – which is counter to what Democrats overall report. In addition, when asked whether House Democrats owe it to their voters to begin debating proposals aimed at passing a national health plan or work on health care legislation that can be passed with a divided Congress and a Republican President, Democrats are divided (49 percent v. 44 percent) while Democratic-leaning independents prioritize House Democrats working on bipartisan health care legislation (53 percent) over debating national health plan proposals (39 percent).

 

ACA lawsuit puts GOP in an awkward position

https://www.axios.com/affordable-care-act-lawsuit-republicans-2c0aff0e-e870-49af-a15e-554d34d3ad62.html

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A lawsuit that threatens to kill the entire Affordable Care Act could be a political disaster for the GOP, but most Republicans aren’t trying to stop it — and some openly want it to succeed.

Between the lines: The GOP just lost the House to Democrats who campaigned heavily on health care, particularly protecting people with pre-existing conditions, but the party’s base still isn’t ready to accept the ACA as the law of the land.

The big picture: A district judge ruled last month that the ACA’s individual mandate is unconstitutional and that the whole law must fall along with it. That decision is being appealed.

  • A victory for the Republican attorneys general who filed the lawsuit — or for the Trump administration’s position — would likely cause millions of people with pre-existing conditions to lose their coverage or see their costs skyrocket.

Some Republicans want the lawsuit to go away.

  • Rep. Greg Walden, ranking member of the Energy and Commerce Committee, supports fully repealing the ACA’s individual mandate, which the 2017 tax law nullified. That’s what sparked this lawsuit, and formal repeal would likely put the legal challenge to rest.
  • Sen. Susan Collins laughed when I asked her whether she hopes the plaintiffs win the case. “No. What a question,” she said.

But other Republicans say they see an opportunity.

  • If the lawsuit prevails, “it means that we could rebuild and make sure that we have a health care system that is going to ensure that individuals are in charge of their health care,” Rep. Cathy McMorris Rodgers said.
  • Sen. David Perdue said that “of course” he wants the challengers to win, which would “give us an opportunity to get at the real problem, and that is the cost side of health care.”
  • Sen. Shelley Moore Capito said she views the lawsuit “as an opportunity for us to assure pre-existing conditions and make sure that we fix some of the broken problems,” but that she doesn’t know if it’d be good if the plaintiffs win.

The bottom line: “The longer we’re talking about preexisting conditions, the longer we’re losing. We need to focus on a message that can win us voters in 2020. The debate of preexisting conditions was a stone-cold loser for us in 2018,” said Matt Gorman, the communications director for House Republicans’ campaign arm during the 2018 cycle.

 

 

The Commonwealth Fund’s Top 10 for 2018

https://www.commonwealthfund.org/publications/2018/dec/commonwealth-funds-top-10-2018?omnicid=CFC%25%25jobid%25%25&mid=%25%25emailaddr%25%25

top 10

In 2018, the Commonwealth Fund’s centennial year, we continued our efforts to advance health care for all. When viewed through the lens of the most popular publications, it has been a year dedicated in large part to showing how Americans covered through the Affordable Care Act have fared as the law has come under attack from Congress and the White House. 

In the last year, we also released our latest state scorecard of health system performance and updated our analysis of the rise in deaths attributable to drugs, alcohol, and suicide. Another top report demonstrated how states can sustain investments in social supports for people in Medicaid managed care.

Please join us as we look back over the year. Here they are: the 10 most-read Commonwealth Fund publications released in 2018.

 

 

 

10 Notable Health Care Events of 2018

https://www.commonwealthfund.org/blog/2018/10-notable-health-care-events-2018?omnicid=CFC%25%25jobid%25%25&mid=%25%25emailaddr%25%25

2018

Between the fiercely competitive midterm elections and ongoing upheaval over the Trump administration’s immigration policies, 2018 was no less politically tumultuous than 2017. The same was true for the world of health care. Republicans gave up on overt attempts to repeal and replace the Affordable Care Act (ACA) through legislation, but the administration’s executive actions on health policy accelerated. Several states took decisive action on Medicaid and some of the struggles over the ACA made their way to the courts. Drug prices remain astronomically high, but public outrage prompted some announcements to help control them. At the same time, corporate behemoths made deeper inroads into health care delivery, including some new overtures from Silicon Valley. Here’s a refresher on some of the most notable events of the year.

1. The ACA under renewed judicial assault

Texas v. Azar, a suit brought by Texas and 19 other Republican-led states, asked the courts to rule the entire ACA unconstitutional because Congress repealed the financial penalty associated with the individual mandate to obtain health insurance that was part of the original law. District Judge Reed O’Connor ruled in favor of the plaintiffs, creating confusion at the end of the ACA’s open enrollment period, and setting up what may be a years-long judicial contest (yet again) over the constitutionality of the ACA. To learn more about the legal issues at stake, see Timothy S. Jost’s recent To the Point post.

2. Turnout for open enrollment in health insurance marketplaces surged at the end of the sign-up period

The federal and state-based marketplaces launched their sixth enrollment season on November 1 for individuals seeking to buy health coverage in the ACA’s individual markets for 2019. Insurer participation remained strong and premiums fell on average. While some states have extended enrollment periods, HealthCare.gov, the federal marketplace, closed on December 15. After lagging in the early weeks, enrollment ended just 4 percent lower this year than in 2017.

3. The administration continues efforts to hobble ACA marketplaces

While the reasons behind lower enrollment cannot be decisively determined, executive action in 2018 may have contributed. The Trump administration dramatically cut back federal investments in marketplace advertising and consumer assistance for the second year in a row. The federal government spent $10 million on advertising for the 34 federally facilitated marketplaces this year (the same as last year but an 85 percent cut from 2016) and $10 million on the navigator program (down from $100 million in 2016), which provides direct assistance to hard-to-reach populations.

4. Insurers encouraged to sell health plans that don’t comply with the ACA

Another tactic the Trump administration is using to undercut the ACA is increasing the availability of health insurance products, such as short-term health plans, that don’t comply with ACA standards. Short-term plans, previously available for just three months, can now provide coverage for just under 12 months and be renewed for up to 36 months in many states. These plans may have gaps in coverage and lead to costs that consumers may not anticipate when they sign up. By siphoning off healthy purchasers, short-term plans and other noncompliant products segment the individual market and increase premiums for individuals who want to — or need to — purchase ACA-complaint insurance that won’t discriminate against people with preexisting conditions, for example.

5. Medicaid expansion in conservative states

Few states have expanded Medicaid since 2016, but in 2018, a new trend toward expansion through ballot initiatives emerged. Following Maine’s citizen-initiated referendum last year, Idaho, Nebraska, and Utah passed ballot initiatives in November to expand Medicaid. Other red states may follow in 2019. Medicaid expansion not only improves access to care for low-income Americans, but also makes fiscal sense for states, because the federal government subsidizes the costs of newly eligible Medicaid enrollees (94 percent of the state costs at present, dropping to 90 percent in 2020).

6. Red states impose work requirements for Medicaid

A number of states submitted federal waivers to make employment a requirement for Medicaid eligibility. Such waivers were approved in five states — Arkansas, Kentucky, Wisconsin, New Hampshire, and Indiana — and 10 other states are awaiting approval. At the end of 2018, lawsuits are pending in Arkansas and Kentucky challenging the lawfulness of work requirements for Medicaid eligibility. About 17,000 people have lost Medicaid in Arkansas as a result of work requirements.

7. Regulatory announcements respond to public outrage over drug prices

Public outrage over prescription drug prices — which are higher in the U.S. than in other industrialized countries — provided fodder for significant regulatory action in 2018 to help bring costs under control. Of note, the Food and Drug Administration announced a series of steps to encourage competition from generic manufacturers as well as greater price transparency. The U.S. Department of Health and Human Services in October announced a proposed rule to test a new payment model to substantially lower the cost of prescription drugs and biologics covered under Part B of the Medicare program.

8. Corporations and Silicon Valley make deeper inroads into health care

Far from Washington, D.C., corporations and technology companies made their own attempts to alter the way health care is delivered in the U.S. Amazon, Berkshire Hathaway, and J.P. Morgan Chase kicked 2018 off with an announcement that they would form an independent nonprofit health care company that would seek to revolutionize health care for their U.S. employees. Not to be outdone, Apple teamed up with over 100 health care systems and practices to disrupt the way patients access their electronic health records. And CVS Health and Aetna closed their $69 billion merger in November, after spending the better part of the year seeking approval from state insurance regulators. In a surprise move, a federal district judge then announced that he was reviewing the merger to explore the potential competitive harm in the deal.

9. Growth in health spending slows

The annual report on National Health Expenditures from the Centers for Medicare and Medicaid Services estimates that in 2017, health care spending in the U.S. grew 3.9 percent to $3.5 trillion, or $10,739 per person. After higher growth rates in 2016 (4.8%) and 2015 (5.8%) following expanded insurance coverage and increased spending on prescription drugs, health spending growth has returned to the same level as between 2008 to 2013, the average predating ACA coverage expansions.

10. Drug overdose rates hit a record high

Continuing a tragic trend, drug overdose deaths are still on the rise. The Centers for Disease Control and Prevention reported 70,237 fatalities in 2017. Overdose deaths are higher than deaths from H.I.V., car crashes, or gun violence, and seem to reflect a growing number of deaths from synthetic drugs, most notably fentanyl. 2018 was the first year after President Trump declared the opioid crisis a public health emergency. National policy solutions have so far failed to stem the epidemic, though particular states have made progress.

As we slip into 2019, expect health care issues to remain front and center on the policy agenda, with the administration continuing its regulatory assault on many key ACA provisions, Democrats harassing the executive branch with House oversight hearings, both parties demanding relief from escalating pharmaceutical prices, and the launch of health care as a 2020 presidential campaign issue.

 

 

MID-TERM MESSAGE: DON’T MESS WITH MY HEALTHCARE!

https://www.healthleadersmedia.com/mid-term-message-dont-mess-my-healthcare

Tired of the partisanship and dithering in Congress, voters took matters into their own hands Tuesday and largely embraced initiatives and politicians who vowed to expand Medicaid and protect coverage for pre-existing conditions.


KEY TAKEAWAYS

You can’t undo an entitlement.

‘Repeal and replace’ is dead. Drug pricing reforms a likely area of bipartisan consensus.

Democrats can push Medicare For All at their own peril.

For healthcare economist Gail Wilensky, the big message that voters sent to their elected officials during Tuesday’s mid-term elections was straightforward and simple.

“Don’t mess with my healthcare,” says Wilensky, a senior fellow at Project HOPE and a former MedPAC chair.

“It’s as clear as that. There were no subtleties involved here,” she says. “That includes protections for pre-existing conditions and added coverage under Medicaid.”

Consider what happened on Tuesday:

  • Overall, Democrats wrested control of the House from Republicans in an election where healthcare was seen as the single biggest issue. Democrats ceaselessly hammered Republicans with the claim that the GOP would eliminate protections for pre-existing conditions.
  • Ballot initiatives in three bright-red Republican states all passed with healthy margins. A similar ballot initiative in Montana failed, but observers blamed the failure on an unpopular $2-per-pack tax on cigarettes that would have paid for the expansion.
  • Wisconsin Attorney General Brad Schimel, a lead plaintiff in a Texas v. Azar, was ousted by Democrat Josh Kaul, who promised to withdraw Wisconsin from the suit.
  • Three-term Wisconsin Gov. Scott Walker lost a re-election bid to Democrat Tony Evers, likely scuttling that state’s recent waiver approval for Medicaid work requirements. Evers also pledged to expand Medicaid.
  • Phil Weiser, Colorado’s Democratic Attorney General-elect, and a former Obama administration staffer, told Colorado Public Radio that one of his first actions would be to join the 17 Democratic attorneys general intervening to defend the ACA in Texas v. Azar.  

Wilensky says the mid-terms results reinforce one of the oldest truisms in politics: Once an entitlement is proffered, there’s no going back.

“There is no precedent that I’m aware of in American political history where a benefit can be taken away,” she says. “Once granted, it can be modified, it can be increased, it can be augmented in some way, but there’s no taking it away after it’s been in place.”

When Democrats took control of the House, Wilensky says, they drove a stake through the heart of the “repeal and replace” movement.

“Republicans couldn’t even get that done when they control both houses of Congress, she says. “It’s a non-issue, in part because a lot of Republicans support major provisions of the Affordable Care Act.”

With repealing the ACA off the table, Democrats and Republicans might find common ground on issues such as drug pricing.

“That’s clearly is the most obvious, in general, but the specifics of what you want to do become much more challenging,” Wilensky says. “Typically, Democrats want to use administered pricing the way that we use administer pricing in parts of Medicare. I don’t know how much Republican support there is for that.”

The two parties could reach some sort of bipartisan agreement on Medicare Part B drugs, Wilensky says, because it’s a smaller program and the drugs are generally much more expensive.

“Most members of Congress are not talking about messing around with Part D, the ambulatory prescription drug coverage,” Wilensky says. “So it really has to do either with the expensive infusion drugs that are administered in the physician’s office or maybe something about drug advertising. Even then, it’s going to be hard lift when you actually get down to the specifics.”

Besides, Wilensky says, it’s not the cost of drugs that’s at the heart of voter agitation.

“You have to unpack what they’re saying to figure out what they’re actually pushing for,” she says. “People couldn’t care less about drug prices. They only care about what it costs them. So when they talk about drug prices they mean, ‘I want to spend less for the drugs I want, and I don’t want any constraints about what I can order.’

More likely, she says, common ground could be found in arcane areas such as mandating greater transparency for pharmacy benefits managers, and changing PBMs’ rebate structure.

Wilensky warns that giddy Democrats should learn from the mistakes of Republicans in the mid-terms and not attempt to force a Medicare-For-All solution on a wary public.

“First of all, they’re going to have to define what it means,” she says. “But, you have to be very careful because historically there’s not been warm and fuzzy response to taking away people’s employer-sponsored insurance.”

“Again, historically, when candidates mess around with employer-sponsored insurance they have gotten themselves into trouble,” she says. “Most people would like to keep what they have, because keeping what you have is much safer than going with something as yet to be defined.”

“DON’T MESS WITH MY HEALTHCARE. IT’S AS CLEAR AS THAT. THERE WERE NO SUBTLETIES INVOLVED HERE,”