Archive for March, 2012

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A Supreme Court wrap up: School House Style.

Friday, March 30th, 2012

After a week of deciphering arcane acts and constitutional powers, one thing remains clear: the Affordable Care Act (ACA) is law. It was law last week, it is law today, and it will be law tomorrow. We all remember its development, passage and signing into law more than two years ago and for those who need a refresher on the process of becoming a law, see here. While the Courts mostly fixate on one provision in that law, we must remember that the road we’ve traveled is legitimate and the goal of health coverage for Americans is right. What comes next is months of speculation – everyone can do that –- so let’s review the facts of the week.

Anti-Injunction, what’s your function?
Of the three days, day one was the lightest, easing everyone into a week of intense questioning (this is what justices do) and media frenzy (this is what the media does).

Solicitor General Don Verrilli and his opponent Paul Clement began oral arguments regarding the constitutionality of the Affordable Care Act – beginning, actually, on the same side of the aisle. Both Verrilli and Clement argued that the Anti-Injunction Act (AIA) – a law that prevents a party from challenging a tax until it is levied – was not relevant to whether or not the Court could move the case forward.

Despite efforts made by Robert Long, a court-appointed attorney, the justices appeared suspect of the applicability of AIA to the ACA’s individual responsibility requirement (IRR. Without wading through the knit picky stances regarding jurisdiction, separation of the IRR from the penalty, and whether the penalty itself is a tax (see a great overview here), the government did get slapped (by Justice Scalia) for its stance that the IRR penalty is not a tax for the purposes of AIA. Verrilli found himself performing a delicate dance because on day two he would need to reframe the IRR, arguing that the tax clause (or Congress’ signature power to tax) supports the inclusion of the IRR in the ACA. But no matter, there is plenty of political posturing frosted over this entire week – no one emerges spotless.

Analysts agree that day one served as a warm up for everyone and that judgment on the IRR, severability of the IRR and Medicaid expansion would move ahead without delay.

Lolly, lolly, lolly, get your Individual Responsibility Requirement here!
As a refresher, day two was considered “the” day of argument to follow. ACA challengers maintain that the individual responsibility requirement (IRR) is unconstitutional. The justices focused on three main issues:

  1. What is the limiting principle – in other words, what keeps Congress from forcing us to buy broccoli, cell phones or burial slots? (Questioning led by Justices Roberts and Scalia)
  2. Is Congress creating commerce to regulate? (first question posed by Justice Kennedy)
  3. Why should healthy people subsidize care that they might never use? (comments suggested by Justices Roberts and Scalia).

For a legal recap, see here.

Though Verrilli’s performance was not the stellar performance many had hoped for, the oral argument is only one factor in determining the outcome. As succinctly put by Brad Joondeph, former law clerk for Justice Sandra Day O’Conner, “In a case of this magnitude, the idea that what was said at oral argument could change the outcome is probably fanciful.”

Despite the fact the more conservative elements of the Court dominated the discourse, both Verrilli and Clement faced a barrage of questioning—Clement slightly more (if you’re counting) than Verrilli. And if anyone needs reminding of why “we need our IRR here,” read through the comments made by Justices Ginsberg and Breyer – much more powerful arguments than broccoli and cell phones.

Remember the IRR School House ditty:

The IRR is an incentive…. (that’s all it is!)
That modifies an objective (Health coverage for all!)
And you see that it’s positively, very, very necessary.

And as we reflect on what is positively very, very necessary, let us recap the morning of day three – so inextricably linked to the day two arguments regarding the constitutionality of the IRR. Can the law stand without the IRR? If not, what provisions fall?

While day one left analysts certain that the Court would rule in June on the constitutionality of the ACA (justices appeared cool to embracing the AIA), and day two left opponents giddy that a ruling on the IRR would go in their favor (because the Court appeared divided during questioning), the morning of day three, left analysts frustrated because it became clear that speculation one way or another about anything is futile.

The usual suspects sided with the opponents of the law. For example, Justice Scalia even going so far as to say that his having to read the entire 2700 page law (oh, wait, I meant his law clerks) to search for provisions linked to the IRR was cruel and unusual punishment (yes, we wouldn’t want that). In the meantime, Justice Kennedy asked of Paul Clement “what test to do you suggest that we follow if we want to clarify our jurisprudence?” Indeed, this was the question of the morning. Justices Sotomayor and Kagan appeared hesitant to cut out any more than necessary. Perhaps the weight of striking of the individual responsibility requirement begins to come into focus – millions of newly covered lives focused.

Alas, to the afternoon of day three.

Medicaid Necessity
With her good intentions,
Where would this country be
Without her expansion?

We all know the answer: at least 16 million people by 2019 would lose out on gaining coverage.

Medicaid went on trial the afternoon of day three – with mixed reviews. The challengers maintained that expanding the Medicaid program – the federal/state partnership to provide health coverage to low-income people – infringes upon states’ rights (you cannot tell me what to buy and you cannot tell me what to do!). Paul Clement did his best to show that expanding the Medicaid program to such a large number of people as proposed by the ACA, instituted a threat of “your money or your life.” Clement maintained that states have no choice but to take a bite of the apple.

While the more conservative justices appeared moved by this argument, analyst Lyle Denniston of SCOTUSBlog warns, “once the Court started down the road of second-guessing Congress’s use of its spending authority, it would never hear the end of it.” In other words, take down Medicaid – what falls next? Hmmm, what is the Court’s limiting principle on that one?

Justice Sotomayor and others countered Clement, coming to the defense of Medicaid. Sotomayor stated, “I guess my greatest fear, Mr. Clement, with your argument is the following: The bigger the problem, the more resources it needs. We’re going to tie the hands of the Federal Government in choosing how to structure a cooperative relationship with the States. We’re going to say to the Federal Government, the bigger the problem, the less your powers are. Because once you give that much money, you can’t structure the program the way you want.” Nailed it….!

As a reminder, no lower court agreed with the Medicaid coercion argument.

What’s for homework?
While our school house might have been rocked this week, it is currently intact and there is plenty of homework.

1) Continue educating the public about the ACA. Mitt Romney is here to help explain the IRR if you need assistance – see the video here. Keep to the facts: Obamacare is good for you.

  • – 86 million Americans used provisions in the Affordable Care Act to get preventative care through their insurance plans with no co-pay
  • – 2.5 million seniors have saved an estimated $1.5 billion thanks to prescription drug discounts
  • – At least 2.5 million young people now can stay on their parents’ health insurance until age 26
  • – 4 million small businesses can now claim a tax deduction for providing health insurance to their employees

2) Continue the good work of implementation – many states know that this is good policy – protecting lives through health insurance coverage, increasing access through Medicaid expansion and health insurance exchanges, and saving money through innovation and cost saving measures. We must continue to prepare for 2014.

Remember, those that work hard, get ahead – so, stay the course…

 – Eva  Marie Stahl, Policy Analyst

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Medicaid Makes States an Offer That Is Too Good To Refuse

Wednesday, March 28th, 2012

Today, the Supreme Court will hear arguments on whether the Affordable Care Act (ACA)’s Medicaid expansion (the planned increase in the number of low-income adults who are able to receive Medicaid coverage in 2014) is constitutional.

The plaintiffs will argue that the ACA’s Medicaid expansion constitutes coercion because the federal government is requiring them to expand Medicaid and to fund (a small portion of) that expansion. But the truth is that state participation in Medicaid is entirely voluntary, not at all coerced. States that don’t want to comply with the expansion can drop out of Medicaid at any time.

The plaintiffs’ response is that dropping out of Medicaid is not a real option – their budgets rely too heavily on the stream of federal Medicaid dollars they receive. Their argument essentially boils down to “the Medicaid program is such a good deal, we’d be crazy to drop out!”

As the case has made its way through the legal process, no lower court has made the leap from “a really good deal” to “coercion,” and it’s hard to believe that the justices of the Supreme Court will be the first to buy that faulty logic. Most legal scholars agree that SCOTUS will uphold the Medicaid expansion, and the Medicaid expansion will still stand even if they rule against the individual mandate.

Upholding the expansion is potentially life-saving for the 15 million people who will gain coverage through Medicaid in 2014. It will also put SCOTUS on the side of the American public as a whole: a recent poll shows that 70 percent of the public supports the Medicaid expansion (roughly the same percentage as support the most popular elements of the law, like eliminating pre-existing condition discrimination).

And ultimately, even though they’re arguing against it in court, it’s good news for states and their budgets. The federal government will foot more than 95 percent of the bill for the newly eligible in the first five years of the expansion. In return for their relatively small investment in this expansion, states will see the number of uninsured adults with incomes below 133 percent of the federal poverty level (FPL) drop by almost half.

Higher rates of insurance coverage means lower state and local spending on mental health care and on uncompensated care for safety-net hospitals. It also means reduced costs for the states that already cover these low-income adults in Medicaid. A 2011 Urban Institute report finds that rather than burden states with new costs, the ACA will lead states overall to spend $92-129 billion less from 2014 to 2019.

Without the federal government stepping in to help, states will eventually have to try to find a solution to the growing number of uninsured. It’s hard to imagine how they would find a better deal than this.

–Katherine Howitt, Senior Policy Analyst

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Guest Blog: The Dog that Didn’t Bark: The Individual Mandate in Massachusetts

Tuesday, March 27th, 2012

This is a guest post from our partner Health Care for All in Massachusetts. 

Republicans have called it the end of liberty in America. Santorum said it would “crush freedom.” Yet here in Massachusetts, the individual mandate is just part of the landscape, helping moderate health costs and providing health coverage to almost everyone in the state.

When the individual mandate, championed and signed into law by Governor Mitt Romney, was implemented for the 2008 tax filings, we called it the “dog that didn’t bark.” For the first time, people had to indicate on their tax returns whether they had health insurance. If they didn’t, there was a penalty assessed on their taxes.

Were there riots? Big protests? Angry town hall meetings? Online fury? None of the above. The individual mandate was calmly accepted as a proper tradeoff for extending coverage to everyone.

To be honest, I was prepared for some backlash. I was hoping that when the time came, it would be great if at least three-fourths of Massachusetts residents filled out the mandate tax forms properly. I was bracing myself for lots of people leaving the new “Schedule HC” (for health care) form blank on their state tax forms. Instead, that first year the Department of Revenue reported that 98.3 percent of filers correctly filled out their forms.

Since then, the individual mandate has become an accepted part of civic life. Even with all the national attacks, the dog still hasn’t barked. Polls in Massachusetts show continued widespread support for the state’s health reform law. With more than 98 percent of people covered, with more businesses than ever offering health insurance to their workers, and with health costs growing more slowly than the rest of the country, it’s clear why there is strong support.

It’s telling that not a single legislator over the past six years has even introduced a bill to repeal our mandate. So it’s not surprising that when a group tried to pass a ballot initiative last year to repeal the individual mandate, they could not get even close to enough signatures to put it on the ballot. In fact, the group had only 43 “likes” on their Facebook page, out of an entire state of 6 million (almost all on Facebook, it seems).

There’s no doubt that health reform is, in the Vice President’s words, a BFD. But for the lucky people of Massachusetts who have an individual health coverage mandate in effect, it’s really not that big of a deal at all.

 – Brian Rosman, Research Director
Health Care for All

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At last. A Supreme Day in Court.

Monday, March 26th, 2012

After a week of celebrating the second anniversary of the Affordable Care Act (ACA), it is increasingly difficult to dismiss all the good that health reform is doing. Whether you are someone with a pre-existing condition who now has access to health insurance coverage or you are under 26 years old and can remain on your parent’s health policy or you are no longer burdened with co-pays for preventative care visits, the good touches us all in some way. With 2014 promising even more coverage gains for people from all walks of life, we must be steadfast in our support of the ACA.

The Supreme Court begins hearing oral argument today and those who oppose health reform are determined to undermine all the benefits of the law. Since anniversary week demonstrated how health care reform is working, it’s worth asking ourselves; how did we end up in the nation’s highest court?

The case.
Directly after the signing of the Affordable Care Act (ACA) in March 2010, then Florida Attorney General (AG) Bill McCollum filed a lawsuit against the federal government. McCollum and others argue that the individual responsibility requirement (IRR) is unconstitutional (in other words, the federal government cannot tell you what to buy). While the IRR is the focal point of the legal challenge, McCollum and friends (plaintiffs) also accuse the federal government (defendants) of coercing states to participate in the Medicaid program, maintaining that the Medicaid expansion is unconstitutional. Profiting from shifting political winds, McCollum swiftly built a list of co-plaintiffs to include 26 states, the National Federation of Independent Business (NFIB), and a handful of private parties.

During 2010-2011, multiple legal challenges unfolded in addition to Florida ― most notably in Virginia (4th circuit) and Michigan (6th circuit). However, Florida became the poster child of opposition due to its vast plaintiff list. The Florida case traveled through the court system in a relatively predictable manner. It began in the U.S. District Court in Northern Florida where Judge Roger Vinson, a known conservative judge, struck down the IRR and subsequently the entire law, granting conservatives a big win. The Obama administration appealed the Vinson decision, sending the case to the 11th Circuit Court of Appeals in Atlanta. A three judge panel ruled 2-1 that the requirement to purchase insurance was unconstitutional. The panel, however, found the IRR to be severable from the rest of the law, meaning that all other ACA provisions remain intact. The appeals panel also confirmed that the Medicaid program is a legitimate federal mechanism to expand coverage to the uninsured, dismissing the charge of coercion as “more rhetoric than fact.” The Obama administration then appealed directly to the Supreme Court.

To better understand the pathway to the Supreme Court, see this flowchart.

During these two years of legal wrangling, it is noteworthy that not all judges followed party lines. Two high profile conservative judges upheld the IRR. Sixth Circuit Judge Jeffrey Sutton, a former law clerk for Justice Antonin Scalia, and DC Circuit Judge Laurence Silberman supported IRR constitutionality. These actions suggest that even the most conservative Supreme Court justices have a legal path to constitutionality of the ACA.

The timeline.
Beginning today, the Supremes will hear three distinct arguments over three days and six hours. This is the longest allotted time for oral argument in 45 years. While the second and third days focus on arguments raised by the Florida case, the first day allots time to address the Anti-Injunction Act (AIA), an issue raised in a separate case heard in the 4th circuit. By doing this, analysts believe that the court is trying to represent all the legal challenges being pursued nationwide. The week’s schedule shapes up like this:

Monday: Anti-Injunction Act: 90 minutes
Tuesday: Individual Responsibility Requirement: 120 minutes
Wednesday: Severability of the Individual Responsibility Requirement: 90 minutes and Medicaid expansion: 60 minutes

Want to dig deeper into these legal arguments? Read a summary of the arguments here and check out all of our resources here.

Now that we’ve reviewed how we got here, you might ask, who’s who?

The legal eagles…
For those of you unfamiliar with the lawyer food chain, lawyers who specialize in Supreme Court practice are few in number and highly skilled. High-profile cases, such as this one, are the stuff of lawyer dreams.

In one corner, you have the heavyweight, seasoned attorney representing the attorneys general and friends. In the other corner, you have the intense, straight shooter solicitor general representing the defense.

Paul Clement. According to a recent New York Magazine article on Clement, he is a quiet and gifted legal mind, noted for his ability to remove the partisan element from an argument. His technique includes targeting the Justice that he needs most; he has made more than four Supreme Court appearances this year alone. Watch (or listen) for him to hit hard on Justice Anthony Kennedy ― viewed as the swing vote on the Court.

Solicitor General Verrilli. Verrilli is the newly appointed solicitor general, replacing Elena Kagan (newest Supreme Court justice). He is known for his hard-hitting work on first amendment rights related to the telecommunications and music industry as well as his work on the rights of death row inmates. He is gifted at cutting through jargon, articulating the basic argument in understandable terms.

The decision makers…
The Supremes. The justices are often described as split 4-4 with Justice Kennedy as the decider (or swing vote). To understand more about the justices, who appointed them and their political leanings, scroll over their photos here. All of those stereotypes aside, the anti-ACA case is an interesting one that tests the conservatives in the pack. (See Michael Miller’s blog here.) Analysts feel relatively certain as to how the liberal slated crew will cast their votes but less sure about how Justice John Roberts (who likes to live in the majority and drive the opinion) and Justice Antonin Scalia (who’s past rulings are cited in favor of retaining the IRR).

Stay tuned this week for more coverage of these hearings. Look for our daily blogs and check out our Supreme Court resource page.

 – Eva Marie Stahl, Policy Analyst

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This week’s Shout Out* goes to……..[drumroll, please]…..

Friday, March 23rd, 2012

Adam Searing, Director of the North Carolina Justice Center’s Health Access Coalition!

Good storytelling is an art, but people who are good storytellers have a knack for making it look easy. Adam Searing not only tells a good story, he shows other people how to do it, and do it well. And he makes it easy.

The bow-tie clad consumer advocate cut his teeth in the health care world by leading the fight against Blue Cross Blue Shield of North Carolina’s effort to convert from non-profit to for-profit status back in the late nineties. Since then, he and his colleagues have taken on many more giants in an effort to create a better and more just health care system for North Carolinians and for all Americans. One of Adam’s most effective advocacy tools has been the use of online video to tell the stories of people’s struggles and successes in getting the care they need. He’s not only created hundreds of compelling, creative videos that have helped advance health reform, he’s also taught other advocates how they can do the same on a shoe-string budget – no fancy equipment or expensive video production teams needed.

We’re not the only ones who’ve noticed. This week, Adam was honored in Washington as a “Champion of Change” for his work to educate others on the benefits of the Affordable Care Act as part of President Obama’s “Winning the Future” initiative.

To add to the commendations, we’d like to point you to some poignant videos produced by Adam and his equally fantastic colleagues, Adam Linker and Nicole Dozier. Enjoy! And congrats, Adam!

– Kathy Melley, Director of Communications

*This Shout Out is the first in what will become a regular blog from the staff at Community Catalyst recognizing people whose words, actions, and/or work (whether advertently and inadvertently) help move the health reform agenda forward.

 

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The Insider: I don’t even play one on T.V.

Friday, March 23rd, 2012

As the Supreme Court prepares to hear arguments next week on the constitutionality of the Affordable Care Act, most legal experts expect the court to uphold the law . I’m not a constitutional scholar or even a lawyer (and who knows what this court will do), but applying facts and reason to the plaintiffs’ case would result in an easy win for the ACA. The two main arguments in the case against the ACA are that the Medicaid expansion is coercive and the Individual Responsibility Requirement exceeds Congressional authority under the Commerce Clause.

Let’s take these contentions in turn; first, the Medicaid argument. Ask yourself: Does Congress have the authority to repeal the Medicaid statute? (Answer: of course, yes). Second: Can they pass a new program that is purely voluntary for states that provides federal support for state health coverage programs provided those programs conform to eligibility rules determined by Congress? Again, yes – no brainer. So…case over. This argument is just plain lacking in merit.

Now let’s look at the attack on the Individual Responsibility Requirement (IRR). You don’t even need to get as far as the Commerce Clause to dismiss this argument. The reason is that the plaintiffs’ contention does not align with the facts. The argument that the ACA forces people to buy health insurance, the heart of the opposing argument, is simply untrue. For people who don’t have employer- sponsored insurance, the ACA rebalances the financial calculus that determines whether people will purchase insurance. It changes the equation by substantially reducing the cost of being insured (via tax credits) and by modestly increasing the cost of being uninsured via penalties for those who can afford, but do not purchase coverage. There is no true mandate, no forced enrollment and no legal sanctions for failure to purchase coverage. Although people react differently to subsidies and tax penalties, in reality, they are not that different. They both operate to change the cost of making a decision to purchase insurance or not, without compelling any particular decision. You can read a similar argument that is heavy on the legalese here.

Long story short—the real question in this case is whether the conservatives on the Supreme Court can separate out their political preferences and rule on the merits. If the answer is yes, the ACA will be easily upheld, but from the folks, at least some of whom brought us Bush v. Gore, anything is possible.

 – Michael Miller, Policy Director

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Health equity in the Exchanges: Some good first steps

Thursday, March 22nd, 2012

Last Monday, the U. S. Department of Health and Human Services (HHS) issued the final rules for the establishment of state Exchanges, a competitive marketplace for individuals and small businesses to purchase insurance. In addition to providing guidance to states as they develop these marketplaces, the rules may also help the Exchanges to better serve a diverse population.

HHS made some positive changes to specific provisions on nondiscrimination protections, language access, and Navigators’ linguistic and cultural competency.

  • · Banning discrimination: All Exchange related activities including marketing practices, benefit designs of qualified health plans, and Navigator outreach and enrollment must comply with existing federal laws that prohibit discrimination on the basis of race, color, national origin, gender, sexual orientation and disability.
  • · Access to language access services at no cost: Individuals and families with limited English proficiency will receive Exchange related information (i.e. notices, descriptions of health plan choices and grievance procedures) quickly and easily through oral interpretation, written translations and notices in non-English languages indicating the availability of language services. There is no charge for these services. HHS plans to develop guidance on best practices related to standards on language access services. This is a big win.
  • · Navigator training on linguistic and cultural competency: Exchanges must establish training standards for Navigators to ensure that they serve the needs of a racially and ethnically diverse population. Further guidance on training model standards for Navigators is promised.

These are good first steps. However, a lot more still needs to be done. Advocates have more opportunities to push the federal government and state policymakers to develop robust policies that help the Exchanges be more responsive to the needs of people of color and immigrants and reduce health disparities. It is important to continue to raise the voices of consumers in support of accessible, equitable Exchanges.

  • · At the federal level, we should urge HHS to quickly develop guidance on best practices related to standards on language access services and models for Navigator training on linguistic and cultural competency.
  • · At the state level, while the final rules require at least one person on an Exchange Board to be a consumer representative, HHS leaves it up to states to decide on the diversity of the Exchange governing board. Therefore, we should advocate for state legislation that requires the Exchange board to mirror the gender, cultural, ethnic and geographical diversity of the states.

Community Catalyst is here to help move health equity forward in states. Based on our work on Exchanges over the past few years we’ve recently developed six principles to promote racial and ethnic health equity in Exchanges to help you shape your state Exchange. To make progress, we must be persistent and work with other stakeholders to increase the involvement and impact of members of the vulnerable communities that have the most to gain from full implementation of the ACA.

– Quynh Chi Nguyen, Program and Policy Associate

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Don’t Forget What the Affordable Care Act is Doing for Former Foster Youth

Wednesday, March 21st, 2012

Much has been made (rightly!) of the Affordable Care Act (ACA) provisions that have transformed health care for young Americans such as the provision that allows most young adults under 26 to remain on their parents’ health plans. As noted in a previous blog in this space, an additional 2.5 million young adults have gained coverage whether or not they are financially dependent upon their parents, living at home, employed, offered insurance through their employer (as of 2014) or attending college. With the anniversary of the enactment of the ACA coming up in just two short days, it’s worth recalling this impressive gain for young adults as they transition from childhood into adulthood.

Just like other young adults, foster care alumni often find it difficult to find affordable health insurance at the age of 18 or 21. However, unlike other young adults, foster care alumni have less access to employer-sponsored health insurance and lack parents that can provide access to such a plan. One of the lesser known provisions of the ACA ensures that, starting in 2014, Medicaid coverage will be available to young adults up to age 26 who were formerly in the foster care system. This expansion represents the most comprehensive and profound legislation for this high-risk population in decades. For youth who age out of care at 18, this means finding their way as adults with affordable, comprehensive health insurance for another eight years. For those in areas where they have the option to stay in care until age 21, this means much the same thing for another five years.

And as with many ACA provisions, getting implementation right with this part of the law will be crucial to ensuring that its promise becomes a reality for children on the verge of adulthood. To this point, one of the key policy questions to consider is: how will youth that are no longer in the foster care system but eligible to continue their Medicaid coverage on January 1, 2014 be identified and maintain their access to Medicaid?

A paper published last year (that was also discussed in this space previously) in the Michigan Journal of Social Work and Social Welfare provides reason for hope that this question can be answered well by documenting the tremendous progress that has been made over the years to improve access to health insurance for foster youth. Legislators and policymakers have not ignored the plight of older foster youth. To the contrary, targeted legislation has received wide-spread, bipartisan support throughout 25 years of changing political administrations. Even in the difficult political atmosphere that accompanied the passing of the ACA, provisions for foster youth were left intact.

When working toward implementation of the ACA for foster youth, the principle that should guide implementation decisions is that this population deserves to access health insurance in the same way their peers have access: whether or not they are financially independent, living at home, employed, offered insurance through their employer or attending college. Let’s ensure foster youth are treated the same as 2.5 million of our children are now treated, with uncomplicated access to care until the age of 26.

Both the ability of young adults to remain on their parents’ health plans and the Medicaid expansion for former foster youth demonstrates the ACA’s commitment to ensuring that children remain healthy as they become adults. We’ve made extraordinary initial progress to date and now we need to keep moving forward and work tirelessly to ensure that all children—especially those most at risk—are able to continue to benefit from all the ACA has to offer.

—Aisha Amanda Marie Hunter, Program Assistant, Policy Reform & Advocacy,
The Annie E. Casey Foundation

& Nicole Tambouret, Project Director,
New England Alliance for Children’s Health

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The Insider: Second Anniversary Check-in on the ACA

Tuesday, March 20th, 2012

With today’s blog we welcome back “The Insider,” Community Catalyst Policy Director Michael Miller, who will continue to provide an “inside out” perspective on major policy and political developments in the health policy arena. Though today’s blog is very Affordable Care Act-centric, future Insiders will delve into other non-ACA hot button health care issues.

More March Madness
The folks who want to restrict women’s access to contraception simply don’t know when to quit. The best available polling shows that a majority of the public supports the ACA requirement that contraception be made available without cost-sharing with an exception for churches or other houses of worship. Although certain segments of the population (Republicans and white evangelical Protestants) are less supportive, independent voters are very supportive of the rule. So politically, the contraception jihad is clearly a loser. Interestingly, the Catholic Bishops notwithstanding, Catholics overall are more supportive of contraception coverage than the general population, and non-whites who identify as either Protestant or Catholic are even more supportive (so there is little chance the issue will drive Hispanic voters away from Democrats). But since the furor shows no signs of abating, here are two points too often overlooked in the debate.

First, employers were already prohibited from discriminating against women by refusing to cover contraception. In addition to numerous state laws, back in 2000, the Equal Employment Opportunity Commission ruled that refusal to cover contraception was a violation of the Civil Rights Act as amended by the Pregnancy Discrimination Act. The main thing the ACA actually does is remove the associated cost-sharing.

The second point is that health benefits don’t belong to employers, they belong to workers. Workers earn the benefits and give up wages in order to secure them. Therefore, the preferences of employers, religious or otherwise, are essentially irrelevant (or should be).

Pretzel Logic
The ACA takes numerous steps to reduce the growth in health care spending. An effort to repeal one of those provisions, the Independent Payment Advisory Board (IPAB) created to develop ways to reduce Medicare spending, is likely to hit the House floor this week. Opponents of IPAB contend that the board’s recommendations will result in health care rationing or put government bureaucrats between patient and doctor. The truth is that IPAB is statutorily prohibited from reducing Medicare benefits.

As the House prepares to bring an IPAB repeal bill to the floor later this week, a number of Democratic supporters of the ACA appear poised to join in the IPAB repeal effort. Those Democrats who voted for the ACA and against the House Republican budget that proposed turning Medicare into a voucher program and are now contemplating a vote against IPAB are becoming nearly Romneyan in their ideological contortions. If you are against cutting benefits and increasing cost-sharing for Medicare beneficiaries, as proposed by the Republicans, and you are for reducing federal health spending, as would be achieved by the ACA, then voting against IPAB makes no sense. The alternative is likely to be the very kinds of Medicare cuts these Democrats have previously opposed.

To be sure, IPAB is not perfect. In particular it could be made better by making sure the board can consider payment and delivery reforms that will yield savings over multiple years. But there is plenty of time to fine-tune the IPAB rules since the board is not expected to file recommendations before 2018. The IPAB repeal vote is nothing more than yet another effort to distort what the ACA really does and undermine both the ACA and Medicare. Those who want to ensure Medicare cost containment is done correctly need to detach efforts to improve IPAB from efforts to weaken the ACA and Medicare program.

And speaking of undermining the Medicare program…
Last year, the House Republican budget proposed to eliminate guaranteed Medicare benefits for future retirees and to turn the Medicaid program into a block grant to states that would shift billions in costs onto states and beneficiaries. Despite widespread popular opposition, House budget chairman Paul Ryan appears poised to double down on last year’s politically damaging proposals. Ryan insists that his budget is about reducing the federal debt, but in addition to punishing cuts affecting older people, people with disabilities and children and families, the plan is expected to include tax cuts for the wealthiest Americans. If nothing else, it offers Americans a picture of the difference between the two parties with respect to crucial health care programs.

I’m still waiting
CMS just released two important sets of regulations—on Exchanges and Medicaid eligibility—that are currently being analyzed by Community Catalyst staff. And, of course, everyone is waiting for more information on federal Exchanges. But as we approach the second anniversary of the ACA, it is past time for the appearance of some other crucial regulations. Although they lack the marquee appeal of Exchange regulations, two topics that are particularly important to lower-income households have yet to be addressed: the Basic Health Plan option (BHP) and IRS rules governing financial assistance, charges, and debt collection for non-profit hospitals.

For those states moving forward with Exchange implementation, BHP regulations are needed so policymakers and consumer advocates can make an informed decision about whether to implement a BHP. The main reason for doing so is that a BHP could provide better benefits at a lower cost for lower-income people. Unless BHP guidance is released soon, there is substantial risk that those states most likely to consider a BHP will be too far down the road in their Exchange planning to give the option due consideration.

With respect to hospital financial assistance, the ACA contains provisions, nominally effective on passage, that would make it easier for uninsured and underinsured people to understand what financial assistance is available from their local hospitals and also to protect people from unreasonable collection actions. But almost two years later, no implementing regulations have been released, which means no improvements in access to care for uninsured and underinsured families. At least the IRS says financial assistance regulations are a priority to release this year (in contrast to CMS, which has been completely silent with respect to timing on the BHP). However, rumors of pushback on financial assistance regulations by hospitals persist, and there is as of yet no clear timeline for the regulations to be promulgated.

A new report from the Center for Disease Control shows that one in three people lives in a household struggling with medical debt makes it painfully clear that this is a problem that shouldn’t wait until 2014 to be addressed. The Obama administration obviously knows this is a problem since the CDC report is actually the second HHS report since passage of the ACA that underscores the problem of medical debt. They also have the power to do something about it by releasing the financial assistance regulations sooner rather than later. That would make a nice second anniversary present for uninsured and underinsured American families struggling to make their way back from the recession.

 – Michael Miller, Policy Director

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For Seniors the Affordable Care Act is the Gift that Keeps on Giving

Monday, March 19th, 2012

This week marks the two year anniversary of the Affordable Care Act. And, while we will devote plenty of space this week to highlighting the many successes of the ACA, we could think of no better place to begin than with the law’s benefits for seniors. Under the ACA, older adults have already seen concrete new benefits such as:

  • • Decreased drug prices: In 2010, the ACA provided a $250 rebate check to seniors who hit the “donut hole” coverage gap, and last year, began offering a 50 percent discount on covered brand-name drugs in the donut hole. New data released over the weekend shows that more than 5.1 million seniors and people with disabilities on Medicare saved more than $3.2 billion on prescription drugs because of these provisions. This means real money back in the pockets of the people who need it most. And the savings will only continue. Under the law, this year, Medicare beneficiaries will receive a 50 percent discount from manufacturers on covered brand-name drugs and a 14 percent savings on generic drugs in the donut hole. These discounts will increase over time until the donut hole is completely closed in 2020.
  • • Increased access to preventive services: In 2011, seniors started receiving a slew of new benefits aimed at keeping them healthy without breaking the bank. The law ended cost-sharing for wellness visits, flu vaccines and certain preventive services recommended by the US Preventive Services Task Force. The free annual wellness visit also includes a new health risk assessment intended to spot chronic diseases and urgent health needs.

These are all tangible benefits that seniors are already enjoying. However, there many lesser-known ACA provisions that hold the promise of improving the health and well-being of the frailest seniors while also reducing the cost of that care. The law created two new offices at CMS – the Center for Medicare and Medicaid Innovation (CMMI) and the Medicare-Medicaid Coordination Office (MMCO) – charged with finding ways to improve care and lower costs within the public programs. These offices have been hard at work developing new programs aimed at finding cost-effective methods of better coordinating care, keeping people from being unnecessarily hospitalized or placed in a nursing home, and promoting overall good health. Two of the latest programs are especially worth mention:

  • • Duals Demonstration Projects: More than nine million Americans have both Medicare and Medicaid coverage. These so-called “dual eligibles” include more than five million low-income seniors who tend to have a higher incidence of chronic conditions, poor care coordination and – as a result – higher rates of preventable (and expensive) hospital admissions and readmissions. Together, CMMI and MMCO have provided planning grants and new financing opportunities to help states design new programs aimed at improving care and lowering costs by better integrating Medicare and Medicaid services. Consumer advocates in many of these states are actively involved in helping to shape these programs so that they fulfill their promise.
  • • Nursing home readmission initiative: Just last week, the MMCO announced a new program aimed at keeping long-term nursing home residents from bouncing back and forth to the hospital. These admissions are disruptive and disorienting, especially for frail elders who are vulnerable to the risks of hospital-acquired complications and other transition-related complications such as medication errors. They’re also expensive. This new program will wisely test whether providing enhanced on-site services and supports can support the goal of reducing avoidable hospital admissions.

These are but two of the many smart programs the ACA has created to improve the lives of older adults and their family members. We look forward to the continued rollout of these kinds of innovations and urge advocates to get involved at the local, state and federal levels in shaping them so they best suit the needs of those they intend to benefit. Happy anniversary, ACA!

– Renée Markus Hodin, Director, Integrated Care Advocacy Project

 

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