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The Insider: The Cost of Compromise

Tuesday, August 10th, 2010

FMAP: Victory at a Price

SNAP Offset Graphic FinalThe Senate voted on Thursday to provide additional federal assistance to state Medicaid programs (and additional support for teachers to avoid layoffs) and the House followed suit today, but the price was high. After several attempts to pass an FMAP extension on an emergency basis (meaning no tax increase or spending cut to offset the new spending) were blocked by a united Republican Senate caucus, the leadership decided to pay for the financial assistance to states by rolling back a temporary increase in food stamps (SNAP). The SNAP increase, part of the American Reinvestment and Recovery Acct (ARRA), was originally projected to phase out in 2014, however, the slow growth in food prices would have extended the increase until 2018. The FMAP legislation means that the increase will indeed end in 2014, creating a cliff that at that time will cause a drop in SNAP benefits.

Senate leaders (supported by the administration) faced with the specter of failure on the fiscal relief legislation and the resulting layoffs of teachers and other state workers plus the scaling back of Medicaid benefits, decided that avoiding the harm now was the lesser of two evils. With luck there will be a chance to restore the SNAP benefit before the cut actually goes into effect in 2014.

The really sorry thing is what the FMAP/ SNAP trade says about the balance of power in the US Senate today. As much as we decry the use of SNAP as one of the funding sources, it is a sad fact that a more progressive source would have been unable to clear the Senate. Unfortunately, things are only likely to get worse in the short run. Republicans, aided by conservative Democrats, will continue to block important legislation (such as FMAP, or an extension of unemployment benefits or the energy bill) and then benefit from it electorally because the problem isn’t solved and people vent their bad mood on the party in power (see example here). With the electoral winds at their back – projections are for gains in the House, Senate and governorships – what’s the incentive for Republicans to change? The prototype for this behavior was health reform under Clinton which the Republicans were able to sabotage and then ride to victory in 1994. Running the same play in 2010 is likely to create new obstacles to ACA implementation in 2011. With a more closely divided Senate ahead, we can expect more replays of the FMAP dynamic until at least 2013.

What does the MO vote really mean? Not much, but VA decision more troubling

While ACA opponents are trumpeting the passage of Proposition C in Missouri, there really isn’t much ‘there’. The voter turnout was heavily weighted to GOP voters, making it more of a straw poll of Republican sentiment than a true test of public opinion. For example, in the Senate primary race 578,582 voted in the Republican primary while only 316,107 or 35 percent of the total voted in the Democratic primary – not too different from the 70-30 split on Prop C.

Further complicating the interpretation of Proposition C was the confusing wording of the multi-part question which addressed the mandate, the right to pay for health services and the ability to make changes to the rules for liquidating certain insurance companies. As a result, Proposition C is a much less accurate barometer of public opinion than the polling which is showing that public support for the ACA is growing (albeit slowly), opposition is declining and the “intensity gap is almost inside the margin of error.” However, the Missouri vote is likely to encourage continued ACA nullification efforts, which got something of a bigger boost from the Virginia court decision last week.

Essentially, the judge hearing the case ruled that, notwithstanding the supremacy clause of the Constitution, a state can pass a law that conflicts with federal statute and then sue to enforce it. To be sure, this is just a procedural decision and a number of legal experts believe the judge has erred and that the case will ultimately be resolved in favor of the ACA, but reading the judge’s reasoning can’t give supporters of the ACA great comfort; nor does the possibility of sending a case all the way to the current Supreme Court.

Be careful what you wish for

If ACA saboteurs really got their way, what would it mean?  Two new reports shed light on that question. A new analysis from economist Jonathan Gruber estimates that implementing the ACA without the Individual Mandate would increase premiums by 27 percent while Medicare Trustees say that total repeal would shift the Medicare trust fund into a deficit a dozen years earlier than current predictions (2017 vs. 2029). But then again, if your goal is to destroy Medicare and you don’t care about expanding coverage, maybe that doesn’t matter.

Is Howard Dean right about the Individual Mandate?

Criticism of the Individual Mandate does not only come from the right. Howard Dean recently was quoted as saying not only that the mandate would be repealed but that it wasn’t necessary. As evidence he cites his own state’s experience with providing near-universal coverage to children without a mandate. Actually Vermont, while offering good coverage for kids, is not unique. The state ranks 14 in the country with respect to the rate of children’s coverage according to Kaiser State Health facts, but even the state that ranks best – Massachusetts – lacks a mandate on kids coverage. The Massachusetts mandate applies only to adults. Does this prove Dean right? Not really.

Hypothetically a similar coverage result could be achieved without the Individual Mandate if Congress could be persuaded to make insurance subsidies sufficiently robust and accept a large migration of moderate-income workers from private to public coverage. However, the outcome of the Congressional debate over the ACA, when there were 60 Democratic Senators and a large majority in the House does not auger well for a large increase in publicly financed health insurance subsidies in the near future. Gruber’s analysis shows that only about 7 million people would gain coverage at current ACA subsidy rates without the Individual Mandate, as opposed to 32 million with the mandate.

The other alternative to the Individual Mandate often mentioned – late enrollment penalties – could work from the insurance industry’s point of view. Late enrollment penalties would protect against adverse selection by charging higher premiums to people who did not obtain coverage when it was available. It’s the method used to guard against adverse selection in Medicare Part D, but it is more likely to create insurmountable barriers to coverage for low-wage workers than it is to produce something approaching universal coverage.

– Michael Miller, policy director

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The Insider: All this could be yours someday

Monday, June 14th, 2010

Fuzzy logic
As the “tax extenders” bill makes its way through the Senate, a provision to extend COBRA premium subsidies for the unemployed is in jeopardy. Opponents in the Senate and the Blue Dogs in the House who stripped the provision from legislation two weeks ago argue that it’s unfair to help people who are unemployed when other, equally needy people are getting no assistance.

Just stop and think about that for a minute: It’s not like they’re identifying an alternative beneficiary for assistance, or arguing to accelerate implementation of the Affordable Care Act. They are basically saying, “Because we can’t help everybody, we won’t help anybody.” If you apply that reasoning more broadly it leads you to advocate the repeal, or at least the suspension, of Medicare and Medicaid until 2014, when financial assistance to obtain coverage becomes more generally available–a move few Congressmembers would dare consider, even in a non-election year.

With unemployment remaining high, the COBRA premium subsidies in limbo are badly needed. They are good for the economy, the health care system, and mostly for the thousands of struggling families who will be able to retain their coverage. Find out more at Community Catalyst’s implementation headquarters.

Faulkner on health care
When William Faulkner wrote, “The past is never dead. It’s not even past,” he could have been talking about the politics of health care more than a half-century into the future. Congressional Republicans’ challenge of the White House public education campaign on Medicare changes as misuse of government funds for partisan advantage hearkens back to Democrats’ attacks on the Bush administration over the original Medicare Part D roll-out.

And Senators who opposed PPACA seem intent on re-debating the legislation at every opportunity: first, in the context of Don Berwick’s nomination to head CMS, and now in the debate over the Medicare physician payment fix. Republicans have offered an alternative that does more for the physicians but partially pays for it by eliminating desperately-needed financial assistance for state Medicaid programs—while slipping in a “poison pill” that would roll back the individual responsibility provisions in PPACA. Such a move could appeal to many on the left who are concerned that the affordability provisions don’t go far enough.

Someday, all this could be yours
As the “repeal and replace” drumbeat goes on, a third ‘r’ should be added to the sequence: Recycle. Congressional Republicans are recycling ideas from the debate that were shown to fail to reduce the number of uninsured or eliminate insurance discrimination.

But as several states move forward with anti-Affordable Care Act ballot measures, new research from Massachusetts shows just how wrongheaded such opposition is. Until the coverage provisions of the Affordable Care Act kick in in 2014, Massachusetts provides the closest thing we have to a “beta site” for what the health care system of tomorrow will look like. While critics focus on the continuing cost challenges (problems that pre-dated health reform in Massachusetts  and were not really addressed in the landmark law in 2006) new reports published by the Urban Institute and the National Bureau of Economic Research underscore just what other states can gain as they move forward with implementing the law.

Urban’s latest report shows that the coverage gap between racial and ethnic minorities and non-Hispanic whites has been closed—the only place in the country where this is true. Additional findings show:

  • –high rates of coverage in Massachusetts persist despite continued high unemployment
  • –economic barriers to obtaining care remain low and have declined further for some populations since the inception of the law
  • –four years into implementation, there is still no evidence of ‘crowd-out’ of private coverage, and public support for the Massachusetts system remains high.

Get the details here (pdf).

The NBER paper found that since reform in Massachusetts, there have been fewer preventable hospitalizations and emergency room-generated admissions, and length of hospital stays has been reduced, most likely due to improvements in access to ambulatory care.

Sure makes implementation look like a lot better idea than repeal.

–Michael Miller, director of strategic policy

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The Insider: A broken record

Tuesday, June 8th, 2010

Health Care Reform = Rationing has been a favorite theme of opponents throughout the debate.  While the circumstances and details change over time, this theme remains constant.  In the past week, opponents have stepped up their attacks on the nomination of Don Berwick to head CMS, citing again his positive statements about the British National Health Service. They also seized on a New York Times article that has largely taken the work of the “Dartmouth Atlas” out of context to continue their scare campaign.  (The Times feeds the Berwick/reform/rationing storyline by quoting Berwick as one of the defenders of the Dartmouth work.)

The Dartmouth researchers have shown that there is no necessary correlation–and at times a negative correlation–between high health care spending and high quality. And though the Times story attacks the Dartmouth work and researchers, it fails to refute their conclusion. The piece has generated vigorous pushback against the piece—not only by the Dartmouth researchers themselves, but by sources for the story who say their words were used out of context to criticize the project.

The problem isn’t that there aren’t limitations and ambiguities in the Dartmouth work. It’s that in the game of telephone from sources to the Times reporters to opportunists who picked up the Times story as another club to beat reform with on the airwaves, all of the nuance gets lost.

–Michael Miller, director of strategic policy

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The Insider: Last minute collapse on doc payments, Medicaid and COBRA subsidies a bad omen?

Tuesday, June 1st, 2010

In the lead-up to passing the health reform law, Congress debated what to do about the Medicare physician payment problem.  Under current law, the formula for setting Medicare physician payment rates, known as the Sustainable Growth Rate, or SGR, will impose large and escalating annual cuts on physician reimbursement.  The SGR issue was ultimately separated out from health care reform, and doctors were assured that the issue would be addressed before the scheduled payment cut June 1.  Physicians pressed for a permanent solution to the problem but because of the price tag, Congress scaled back, first to a 5-year patch and then to a 19-month fix.  The scaled-back SGR patch passed the House just before the Memorial Day recess, but without enough time for the Senate to act.  Theoretically that means that a Medicare payment cut of over 20 percent kicks in today, but CMS is holding onto claims for a couple of weeks assuming that when the Senate comes back they will enact a retroactive payment increase.

While the physician payment fix is likely to get sorted out, two other critical provisions face a more uncertain future.  With unemployment still high and state budgets still in trouble, House and Senate leaders attempted to extend enhanced federal Medicaid payments to states through the end of state fiscal year 2011 (the enhanced payments are currently scheduled to end halfway through the year) and to continue the subsidy of COBRA premiums created by ARRA last year.  But in what’s being described as victory for House fiscal conservatives, both of these measures were struck from the House legislation late last week, and whether the Senate will restore them remains uncertain.  Roughly 20 states are already counting on the extra Medicaid help in their state budgets.

However, that victory may prove short-lived. Both the COBRA and Medicaid provisions themselves are popular with core Democratic constituencies, and it’s entirely possible that the Democratic Blue Dogs who have drawn a line in the sand in the name of controlling federal spending will be punished at the polls, not rewarded, if the Medicaid and COBRA funding is not restored. They could lose support from the Democratic base without picking up any offsetting support from more conservative voters.

If funding is not restored there are several implications that go beyond politics.  The first is harm these cuts do to low- and moderate-income families who will lose coverage or services as a result. Second, the loss of COBRA subsidies is a blow to the drive to provide health security for all, while the loss of Medicaid funding will certainly turn up the heat on the already charged debate over the role of Medicaid in reform.  Finally, if there is a more conservative Congress in 2011 as anticipated, future debates over federal health care funding and implementation could become similarly difficult, with Congress unable to agree on funding for provisions in PPACA that are authorized but lack an appropriation.

The immediate implication for health care reform advocates is that we need to redouble our efforts to persuade the Senate to revive the COBRA and Medicaid funding.  It’s time to step in to keep reform on the right track.

More on Living in Chicken Little Land

You know it’s Chicken Little time when people can (and do) go on about how awful health reform is without any regard to the available facts.

Exhibit A:  Public opinion. The most recent Kaiser tracking poll (pdf) shows that the top concerns opponents have about health care reform is that it will increase health care spending and is not paid for.

Both the Congressional Budget Office and the CMS Office of the Actuary have refuted these claims in the past.  CBO has found that health reform will reduce the deficit (pdf) while the CMS actuary projects that reform will provide coverage to over 30 million people with a negligible increase in costs.  Recently, a Commonwealth Fund/Center American Progress analysis has suggested that both CBO and CMS are being too conservative in their projections.  Essentially both agencies assume no savings at all from efficiency gains, quality improvements and delivery system changes–sources that could, by moderate estimates, generate a potential $600 billion savings over 10 years.

Exhibit B: state government.  Numerous states have vociferously complained about the burden the Medicaid expansion, a core component of health reform, will impose on them; many going so far as to file a lawsuit to block the expansion.

The facts? A new paper released by the Kaiser Commission and the Urban Institute tells a different story (pdf).  The study shows that on average health reform will add only 1.4 percent to state Medicaid spending between now and 2019.  This is very similar to the 1.25 percent estimate developed by the Center on Budget and Policy Priorities.  And neither of these forecasts take into account savings to states from changes in the delivery system or from reductions in spending on services that are now 100 percent state funded but will be covered by Medicaid in the future.  Although state by state estimates vary, in no state does the federal government contribute less than 94 percent of the cost of the expansion.

Unfortunately, it isn’t much use telling the truth to people whose minds are already made up. Facts don’t matter to Chicken Little, who gets all his information from the Fox (news).  As we noted in the last post, the only thing that will persuade these folks is when the sky doesn’t fall in 2014 and, at least for some, they start receiving benefits under the law.  Then they’ll probably join the “keep government out of my Medicare” crowd.

DoJ presents its case
The Department of Justice has, in several legal briefs, laid out its basic arguments against the lawsuits seeking to undermine health reform.  Here’s a CliffsNotes version of the arguments:

•    States have no standing relative to the individual coverage requirement, which applies to individuals, not states (duh).
•    There is no need to block the law from going forward now since there is no possible injury until April 2015, when penalties for failure to purchase coverage would be due.
•    Individuals who now claim the law would require them to purchase coverage can’t know their circumstances in 2014, so the “injury” is purely speculative.
•    State residents cannot vote to exempt themselves from federal law they don’t happen to like.
•    The minimum coverage requirement is a reasonable part of the regulatory scheme that governs economic activity related to health care and health insurance, and thus falls within the Commerce Clause,
•    Tax penalties associated with the requirement to purchase coverage fall within Congress’ power to tax and spend for the general welfare.

Call it what it is—then change course

When responding to repeal proponents it’s important to:
a) Call the attacks what they are: an attempt to preserve an unsustainable status quo that leaves millions without coverage and millions more who have coverage at risk of financial ruin.

b) Turn to the benefits of the law—reform will:
•    Provide security to millions of working Americans
•    Guarantee people access to the same plans as members of Congress
•    Help women, children and people with serious medical conditions get more affordable and more secure coverage
•    Strengthen oversight of insurance premiums and help people get better value for their premium dollar

–Michael Miller, director of strategic policy

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The Insider: Proxy War

Monday, May 17th, 2010

LINK FIXED

Last week, we likened the low-visibility conflicts over regulatory measures to trench warfare. This week, the military metaphor of choice is proxy war. Republicans in the Senate are using the nomination of Dr. Donald Berwick to head the Centers for Medicare and Medicaid Services to resurrect many of the themes they sounded during the legislative debate–especially the fiction that health care reform will lead to rationing.

Yes, folks, the death panels are back–if not explicitly, then by (heavy) innuendo.

Why? Because Berwick, currently the head of the Institute for Healthcare Improvement, has made the near-treasonous observation the U.S. health care system is not, in every respect, the best in the world (World Health Organization rankings be darned).

And he had the temerity to express admiration for the British National Health Service. Admiration for the NHS means support for comparative effectiveness research, which is akin to endorsing rationing, which is achieved by death panels, which lead to socialism—get it?

But the GOP attack on Berwick is not motivated, at least exclusively, by wounded national pride, sour grapes over the party’s failure to kill health reform, or even by policy differences. Rather, it is a cold political calculation aimed especially at raising the fears of seniors, who (as we repeat almost weekly) will have a major say in which party controls Congress in 2011. Right now, that calculus appears to be working.

Life in Chicken Little Land

Chicken Little

If the election were held today, the picture would look pretty scary for Democrats. Although overall voters seem pretty evenly divided on who should control Congress, the enthusiasm gap definitely favors the Republicans. According to Cook Political Report, of the 30 “toss up” House races, 28 are currently held by Democrats, setting Republicans up for significant gains in the House. In the Senate, Republicans could pick up as many as six or seven seats.

What does this mean for health care reform? Well, we should be prepared to live in Chicken Little Land for quite a while to come, fielding Y2K-style warnings of impending doom until the sky fails to fall in 2014. (Of course, that’s only if we first get past the Mayan calendar end-of-the-world prediction in 2012.)

Of course, a lot could happen between now and then, and most of it is outside of the control of health care advocates. What we can do—and must do—is keep on telling the truth about reform, making special outreach efforts to those who are most vulnerable to misinformation.

Laugh-track

Watch Jimmy Kimmel and T-Pain’s musical spin on some of the President’s health care reform messaging.

–Michael Miller, director of strategic policy

photo credit: ffg on flickr

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The Insider: Trench Warfare

Thursday, May 13th, 2010

While political and legal attempts to repeal the Patient Protection and Affordable Care Act may draw the most attention, the real success or failure of the law will play out in hundreds of regulatory battles that will take place largely out of the public eye.

One of the first such battles is the definition of “medical loss ratio” (MLR).  The MLR is the percentage of premium dollars that a health insurer is required to devote to the medical care of its enrollees.  Under PPACA, individual and small group plans must spend 80 percent of premium dollars on medical care (as opposed to advertising, administration and profit), and larger groups must spend at least 85 percent. Failure to meet these required thresholds would trigger a rebate to policy-holders.   However, PPACA allows expenditures designed to improve quality of care and state and federal taxes to be exempted from the MLR calculation.

Industry representatives are not satisfied with these qualifiers, and are lobbying for special transition rules for those carriers that will have trouble meeting the MLR standard, warning that insurers may choose to exit the market rather than pay rebates.  Some are also arguing for special laxer rules for small carriers or for certain types of insurance.  They claim that small carriers have higher administrative costs but lower premiums for comparable coverage, and could be driven from the market without special consideration.

If it is indeed the case that small carriers have lower premiums (despite higher administrative costs), it is likely because these small insurers are underwriting more aggressively—a practice they will be forced to discontinue in 2014.  There doesn’t seem to be any good reason now to allow them to keep cherry-picking healthy enrollees who they will then be able to hang onto in “grandfathered plans” once reform fully kicks in—making the risk pool worse in the Exchanges.

The National Association of Insurance Commissioners (NAIC) is charged with developing recommendations to HHS to implement the MLR provision.  NAIC recommendations are expected by June 1.  The extent to which the NAIC (and ultimately HHS) gives in to the special pleadings of the industry will be one early indication of the willingness of state and federal regulators to stand up to special interests as implementation proceeds.

–Michael Miller, director of strategic policy

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The Insider: The Political Ecology of Health Reform Implementation

Wednesday, May 5th, 2010

Throughout the debate on passage, pollsters regularly found that the public wanted a “bipartisan solution” to health reform. Of course, no such solution was forthcoming if by bipartisan we mean something that attracts votes from members of both parties. As implementation moves forward, the partisan divide looks, if anything, to further grow.

The persistence of these bipartisan wishes suggests that many Americans do not fully appreciate the extent of the rightward shift in the Republican Party. This can clearly be seen in the standing of Republican Governor Charlie Crist of Florida, now a candidate for the U.S. Senate who recently decided to run as an independent after he was overtaken in the primary polls by tea-party favorite Marco Rubio. Crist, while less extreme than former governor Jeb Bush, is no liberal. But he finds no home for himself in today’s Republican party. Similarly, Utah Senator Robert Bennett is at risk of losing his party’s nomination to a challenger on his right, even though he has an 84 percent lifetime favorability rating from the American Conservative Union.

Another marker of this shift is the sharp contrast between the support for reform of recent Republican leaders such as former Senate Majority Leader Bill Frist from the pronouncements of today’s party leaders. Even some of the moderate Republican governors who have been more supportive of reform—e.g. Connecticut’s Rell, and Schwarzenegger—are about to exit the political stage.

If the elections were held today, most projections show that the Republican Party, increasingly indistinguishable from the extreme far right, would claim a significant though not decisive victory, bringing into office a new crop of officials publicly committed to repeal of reform.

That’s the bad news.

The good news comes in two parts:
a) Even if there is an electoral tsunami, the repeal strategy faces enormous hurdles and
b) While the repeal torch burns as hot as ever for the true (un)believers, there is some indication of an upswing in support from the general public.

The latest Kaiser poll shows 49 percent of the public supports reform, compared to 40 percent who are opposed. Importantly, all of the early implementation provisions rack up big majorities among Republicans and Independents as well as Democrats.

The popularity of these measures muddies the message of the repealers–but only if people know about them. Educating the public about the early provisions of reform, then, is crucial not only to make sure that people get the new benefits, but to influence the future political environment in which reform will be implemented.

Insurance Rate Regulation and Beyond
When it rains it pours for insurance giant Wellpoint. Last week it was outed for its aggressive policy of trying to dump women with breast cancer from its rolls. Then it withdrew its controversial proposal for a 39 percent premium rate increase in California, admitting that there were errors in its calculations but claiming those miscalculations were inadvertent.  (In related news, the company has announced it will be putting the Brooklyn Bridge on the market to help recoup the revenue from the cancelled rate increase, but so far no buyer has stepped forward).

Even taking the company at its word, Wellpoint’s debacle illustrates the need for stronger rate oversight. Leaders of the Senate HELP committee continue to debate the options for moving the Feinstein rate oversight bill, S.3078, which also picked up an important endorsement from the American Cancer Society/Cancer Action Network. Companion legislation has been filed in the House by Illinois Congresswoman Jan Schakowsky.

At the same time, advocates need to be mindful that strong oversight of insurance premiums is a necessary but not sufficient piece of the cost-containment puzzle. The anti-trust investigation into possible monopoly pricing by Partners Healthcare—the largest hospital system in Massachusetts—illustrates a pervasive problem in the U.S. health system. While it remains to be seen if there was anything actually illegal in Partners’ negotiating strategy, the issue of concentrated provider power is real and not confined to Massachusetts. (See this recent report on the effect of market power on health care costs in California.)

In fact, the high prices that we in the United States pay for health care across the board add much more to our high costs than do the mix or amount of services we use, as Ezra Klein shows here. On a series of charts comparing the prices U.S. insurers pay to those of other countries–regardless of procedure or number of appointments–“the block representing the prices paid by American health-insurance plans [looms] over the others like a New York skyscraper that got lost in downtown Des Moines.”

Sure, it’s fun to pick on the insurers, and certainly they deserve it. But we can’t approach cost-containment like the drunk looking for his keys under the streetlight–not because that’s where he dropped them, but because that’s where the light is. Going after the insurers may represent the low-hanging fruit, but the sustainability of health reform will depend on effective cost-containment–and that means taking a close, hard look at the delivery system.

–Michael Miller, director of strategic policy

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The Insider: Repeal Watch

Tuesday, April 27th, 2010

With Enemies Like This, Who Needs Friends?

As they tried to regain their footing after the surprise Senate election of Scott Brown, reformers received an unexpected boost from for-profit insurer Wellpoint. In February, the insurance giant announced it was planning to raise rates by 39 percent in California, and similarly large increases were reported elsewhere. Coming off a $2.5 billion profit in the last quarter of 2009, this didn’t sit so well with much of anyone but insurers, and became a major rallying point in the White House, Congress and advocates’ final push for reform. Some conservative commentators went so far as to blame Wellpoint for reform’s subsequent passage.

Now Wellpoint is at it again.  Recent headlines suggesting that the company routinely targets women with breast cancer for rescission boost the case that, if anything, the tougher insurance oversight that is part of the Patient Protection and Affordable Care Act doesn’t go far enough.   Since it seems the folks at Wellpoint can’t help themselves, it’s up to advocates and regulators to stop them before they kill again (no joke).

Repeal Watch 1: Public opinion
This latest Wellpoint scandal makes it crystal clear: The repeal chorus is defending the indefensible.  And yet, with 45 percent of conservatives getting most of their information from cable news, it’s unclear that the indefensible is making it on air. The latest Kaiser tracking poll (pdf) has some moderately good news for reformers: a plurality of the country supports reform, but many are confused (or misinformed) about what reform actually does.

This lack of understanding underscores both the need and opportunity for an aggressive public education effort using all available means—everything from paid and earned (and social!) media to one to one conversations at the community level.

More bad news for repealers (and good news for us): there is strong cross-partisan public support—among Democrats, Republicans and Independents—for the early provisions of reform like small business tax credits, $250 rebate for seniors with high drug costs and coverage for children with pre-existing conditions.

But people over 65 continue to hold a more negative view of reform than younger adults do—and that’s worrisome, especially in light of their disproportionately big turn out at the mid-term polls, which we’ve talked about here before.

Even so, repeal may not be the ticket to ride that some conservative activists hoped for. A recent poll of Florida voters showed that a majority think that the state Attorney General McCollum’s decision to sue the federal government was a bad idea and that McCollum, the front runner in the Florida governor’s race, was losing ground.

Repeal Watch, Part 2:  Breaking down the repeal arguments

Voters have good reason to be skeptical of the repeal efforts, which have overwhelmingly been advanced by candidates seeking higher office or as part of a larger right-wing electoral strategy. A growing number of state legislatures hold a similarly skeptical view—so far more than 12 have rejected repeal measures.

And they are right to, since the main repeal arguments are so far-fetched.  Basically, they amount to:

  • The law is illegal because the Medicaid expansion imposes new costs on states. By the same reasoning, other provisions of Medicaid law, such as the requirement to cover certain children or people with disabilities, would also be illegal, and Medicaid would become nothing more than a blank check written to the states. And what of those new costs? A recent CBPP report shows that new state costs through 2019 add up to only 1.25 percent of projected state spending, and that’s before factoring in possible offsetting savings to states.
  • States have the ability to selectively decide which federal laws they will obey. This argument essentially parallels the case made by segregationists almost 50 years ago and has been decisively rejected by the courts.
  • The individual mandate falls outside of Congress’ authority to regulate interstate commerce because it regulates “inactivity” and/or it is an impermissible tax.

But from a legal standpoint, the “mandate” falls squarely within Congress’ authority to raise taxes. Semantics aside, the individual mandate is not really a mandate, but a financial incentive to purchase coverage.  From an economic standpoint, it is no different than the existing tax subsidy that goes to employer-sponsored coverage; lowering the cost of doing something or raising the cost of not doing it are functionally the same (more at the New England Journal of Medicine–subscription required).

In sum, both the legal and political campaigns for repeal (if indeed the two are distinguishable) rest on shaky ground—and more and more voters and political leaders are beginning to figure that out.

–Michael Miller, director of strategic policy

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The Insider: Implementation Nation

Tuesday, April 20th, 2010

Although the national media spotlight has moved on, the work of health care reform is only beginning. Today we  look at some of the recent developments in Massachusetts—which is sort of a health reform “beta site”—and what they tell us about reform in the rest of the country. We’ll also examine one of the early implementation provisions: the temporary high-risk pool.

Massachusetts: The gift that keeps on giving

Throughout the debate on national health care reform, Massachusetts has played an outsized role. The bipartisan nature and popularity of reform in the state, its success at reducing the number of uninsured, and the prominent role Massachusetts pols from both parties played in the national reform saga have all helped to make what happens in the Bay State unusually significant. This is likely to continue to be true going forward.

Because Massachusetts is farther down the implementation path, it has already encountered issues that will come up in other places. Three recent developments in Massachusetts highlight the state’s continuing relevance to the reform debate.

The first is the controversy over insurance premium rate hikes.  Earlier this spring, the Massachusetts Division of Insurance denied dozens of premium rate increases as being excessive. (See the Boston Globe article.) The ruling led to a court challenge by insurers and a brief insurance “strike” as Massachusetts insurers took their plans off the market.  (Since the court refused to grant the insurers a preliminary injunction most plans are again available). Although this preliminary ruling went against the insurers, there is no guarantee about the final outcome.

The takeaway? Insurers will play hardball to resist downward pressure on premiums. States need strong tools and political will to fight back. An effort to beef up premium oversight had to be stripped from the final national health reform bill because it did not fit within the rules of the budget reconciliation process, but a stand-alone rate regulation bill is being championed by Sen. Diane Feinstein. A hearing is scheduled for this Tuesday in the HELP committee, but odds of passage are uncertain, since it’s likely that Republicans will present a united front in opposition, making it hard to get the necessary 60 votes.  In the absence of federal authority,  advocates may want to turn their attention to strengthening state oversight.

A second issue to hit the Boston media recently also has lessons for national reform. Insurers allege that there is a group of people taking advantage of continuous open enrollment to purchase non-group insurance for a short period of time, schedule costly medical care, and then drop out. Like so much of national reform, this claim comes with a heavy dose of politics attached, since the charges are being made by a former insurance industry exec who’s running for governor.

These “short-stayer” allegations have yet to be substantiated. So far insurers have not provided data which shows what medical care alleged short-stayers are using, whether or where they were previously insured, and whether the problem is growing or actually diminishing. The Division of Insurance is studying the issue and its report is expected soon.

Meanwhile, we can and should expect insurers to fight to undermine the impact of guaranteed issue by narrowing access to insurance. This battle will be fought first at the federal level as HHS determines the initial and subsequent enrollment periods, and it’s critical that consumers push back to make sure that insurance remains as accessible as possible.

The third implementation issue in Massachusetts with implications for the states is one that has received no media attention (and was not heeded by federal lawmakers during the debate): When it comes to helping people make informed choices among competing insurance plans, standardizing actuarial values is simply not enough.

Within any given benefit tier (gold, silver, etc.), insurers can vary cost-sharing arrangements so much that comparison remains difficult. Focus groups in Massachusetts show what those done by national organizations do: What people want is better choices, not an infinite number of choices. And so after several years of experimenting with actuarial value, the Massachusetts Connector has moved to standardize benefits. Federal law does not require states to create standard benefits, but it does not prohibit it, either. Nor is there any reason that standardization has to wait for the 2014 kick-off of health insurance exchanges.  Advocates should consider pushing for greater standardization in their state markets now.

High-Risk Pool rules present states with tough decisions

One of the first provisions of national health care reform slated to be implemented (90 days after passage) is the creation of a temporary high-risk pool (HRP) for those excluded from coverage due to a pre-existing condition. As welcome as this new program is, given that most existing state high risk pools perform poorly, it may prove difficult to effectively integrate the new program with existing state law.

PPACA establishes a set of rules for both the federal HRP and any existing state pool that wants to tap into the $5 billion in federal support made available by health reform.  These rules include setting a minimum actuarial value and out-of-pocket maximum for HRP coverage. They also prohibit the imposition of pre-existing condition exclusions, require rates to be the same in the HRP as in the market generally, and set a limit on age rating of no more than 4-1. All of these are welcome changes.

However–and it’s a big however–federal law also restricts eligibility for the HRP to those who have been uninsured for at least six months. While this provision is designed to prevent people from dropping existing coverage to enroll in the federal plan and to help stretch federal dollars, it also creates some problems. Consider these four types of states:

States with no HRP and no guaranteed access to insurance in the non-group market–For these states there is no problem: Either the state will set up an HRP that meets federal standards, or the federal government will set up a pool on behalf of the residents of that state. End of story.

States with an HRP that is worse in all respects to the federal law–A state could “true up” its program to meet federal requirements, or it could do nothing, in which case the federal government would set up a parallel program.

What happens then? Everyone with a pre-existing condition (who can afford the premiums) can enroll in the federal program except those who are already enrolled in the state HRP. They either have to take the risk of going without coverage for six months, or remain locked into inferior and costlier coverage in the state pool.

States with an HRP that does not require a six-month wait–Even if a state pool is as good as or better than the federal requirements in most respects, the requirement for a six-month waiting period could create problems.

In general, states can run a program that is better than the federal program if they choose. But, if states do not impose a six-month waiting period, their program will not qualify for federal assistance.So they have the choice:   either impose a new access restriction on people with pre-existing conditions, or set up a parallel pool (or allow the federal government to). In the latter case, those who can take a chance on going without coverage for six months could join the federal pool, while those who could not would retain or join the state pool, leading to a generally sicker pool of enrollees in the state pool.

States that already have guaranteed issue and modified community rating in their non-group market–A number of states, including New York, Maine, Vermont and several others have already eliminated pre-existing condition exclusions instead of having a high risk pool. However, because of the six-month no-coverage requirement it’s unclear if these states would benefit at all.

Regulations for how states should implement the HRP provisions are expected very soon from HHS, but it’s unclear whether the Secretary has the authority to address these problems, or if the solution requires a Congressional fix.

Coming next time: Repeal Watch!

–Michael Miller, director of strategic policy

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The Insider: Repeal vs. reality, PLUS the health reform deciders

Monday, April 5th, 2010

Are the worms turning?
While cries of repeal are still echoing in some quarters, doubt about the enterprise is beginning to seep through. Senator Bob Corker (R-TN) has publicly argued that repeal is not realistic (later clarifying he meant as long as Obama is in office), and the Chamber of Commerce, one of the interest groups most active in opposing reform, has also said it will turn its attention from repeal to influencing the regulations and pushing amendments. The Chamber is also planning to spend tens of millions of dollars to elect candidates friendly to their positions (which generally means not those who voted for health reform), but there’s little doubt that they would do that with or without passage.

More about the walk backs here and here and here.

Essentially, repeal is a nonstarter unless Republicans control both the White House and 60 Senate seats (or are close enough to 60 to make a deal with conservative Democrats). Threatening to “defund health care reform” if they take control of Congress is similarly hollow (Wonk Room says why.)

As we said last week, repeal isn’t in the interest of most of the health care industry (they’re helping to back Enroll America) or that of the employers (who doth protest too much.) Repeal is, at bottom, the rallying cry of  ideological extremists and their financial backers who oppose a set of policies embraced by many Republicans in the 1990s at Mitt Romney just a few years back-–policies well to the right of Richard Nixon. (For the record, it gave me the CREEPS to write that.)

Although the repeal caucus is becoming more marginal, the walk back from repeal doesn’t in any way mean smooth sailing for reform. (Speaking of sailing, watch our video valentine to health reform advocates.) Along with the Chamber, insurers are suiting up for the implementation game. The industry sent over 1,500 representatives to a recent meeting of the National Association of Insurance Commissioners (who number 50). The NAIC will have a major role in structuring the Exchange and the law’s insurance reform provisions.

And big employers are already squawking about the fact that the law closes a loophole in the Medicare Part D statute that allowed them previously to deduct from their taxable earnings the portion of retiree health benefits cost subsidized by the federal government.

This is the brave new world of our next four years: powerful special interests focusing their fire on specific provisions that they find objectionable, while repeal remains “red meat” to rile up the far-right voters. Better get used to it and dig in for a long fight.

A closer look at public opinion post-reform: Is there a bump from this Baby?
(Maybe, but it’s not really showing yet.)

On his recent trip to Maine, President Obama chided the media for their obsessive focus on the popularity of health reform, saying the new law must be given time to work.

But, if anything, the importance of public opinion is growing post-passage. During the legislative cycle that just finished, public opinion mattered, but was only one among many factors that influenced the outcome. The real decision makers were Congressmembers, who are influenced not only by voters, but by donors, advisors, party leaders and other folks who want stuff.

In the election (spin) cycle we are entering, voters are the decision makers. And what they think about health reform in 2010 and 2012 will, in part, determine who is in a position to make the key decisions about implementation. Right now, voters are pretty evenly split on the question of whether passage was a good thing for the country. On balance, they believe that reform will help someone other than themselves and are worried that that help will come at their expense.

The public also holds internally inconsistent views about the role of government in health care, with majorities simultaneously believing that there is too much government involvement in health care, that health care reform didn’t do enough to check the power and potential abuses of insurers, and that there should be a public insurance option available.

One factor in public opinion that could have big mid-term consequences is the age divide. The majority of younger voters support reform, but older voters, who tend to be a relatively larger fraction of the mid-term electorate, are more negative on reform.    And while younger voters are more likely to care about other things (e.g. unemployment), health care is a more pressing issue for older voters.

These older voters’ critical role in midterms helps explain why one of the first things out of the box is help for seniors facing high prescription drug costs. Starting this year, Medicare beneficiaries who enter the “doughnut hole” coverage gap in Medicare Part D will receive a $250 rebate—giving seniors a tangible benefit to weigh against the fear of future change that has been stoked by opponents throughout the debate. (Remember the death panels?)

Although it is still a long way from election day, right now it looks likely that Republicans will make big gains in the midterms in both houses, though still fall short of wresting control of either chamber away from the Democrats. With narrower margins to work with at best, we can expect future [positive] tweaks to reform to come via the budget reconciliation process.

Deconstructing the kids pre-existing condition brouhaha
In the run up to reform, Democrats touted the elimination of pre-existing condition exclusions for children as one of immediate benefits of reform. Then, shortly after passage, there was a brief argument about what the provision actually meant: Did it mean that insurers could no longer refuse to cover a family based on a child’s pre-existing condition? Or did it only mean that if they covered a child, they could not impose an exclusion? (Prior to passage, there was quiet concern about the ambiguity of the provision, but it did not reach the media). After a stern letter from HHS Secretary Sebelius, insurers—who had briefly asserted the more narrow interpretation—quickly folded their tents and agreed to the more expansive view.

Why? Was the law clearly on the side of the administration, or was something else at play? (If you guessed the latter, give yourself a star.)

First, staging a fight to defend their right to deny coverage to sick kids is a bad PR move for the insurers. Second, insurers don’t really oppose reform overall (Enroll America, remember?)

Third, and most importantly, insurers retain the ability until 2014 to vary premiums based on the “experience,” or expected cost, of enrollees with significant illnesses. Until then, the immediate win for kids with pre-existing conditions is less meaningful than it first appears. So score it as a PR win for the administration and insurers, and a small step forward for children with pre-existing conditions.

No Fooling
Has Senator Tom Coburn (R-OK)been spending too much time with Congresswoman Michelle Bachman (R-MN)? Last week, Sen. Coburn admitted to being paranoid. “This may be a little paranoid, but I think they know it’s going to fail,” Coburn said. “Then we’ll go to a single payer system like Western Europe.”

(Upon hearing Coburn’s comments, Dennis Kucinich is rumored to have said, “From his mouth to God’s ear.”)

–Michael Miller, director of strategic policy

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