December 13, 2012
Dear States, The world will not end next week...
NASA says so. No more procrastinating on ACA compliance. The state-based exchange extended deadline is tomorrow. And, you better get to work on that Medicaid expansion too; Nevada has, so what are you waiting for? Oh, right, the end of the world. Well, no more dillydallying.
December 12, 2012
AHRQ Advance Notice of Funding Opportunity
Of note this week: AHRQ has published a notice of intent to publish a funding opportunity announcement for a network to develop evidence to inform comparative effectiveness decisions in patient-centered outcomes research. The network, called DEcIDE, will link together centers performing comparative effectiveness research on topics identified as critically important by stakeholders in Medicare, Medicaid, or CHIP. There are several reasons for calling this notice to the attention of HealthLawProf readers.
First, as we all know, there are great--but highly controversial--hopes for using CER to help in modulating increases in health care costs. Lurking under the controversy are a host of legal issues, including risks that certain cutback designs may discriminate against persons with disabilities.
Second, the AHRQ published this as a notice of intent to allow centers to assemble teams of people interested in health policy. Specifically, "applicants will need to form partnerships with stakeholders representing multiple perspectives, including such groups as patients, providers, payers, purchasers, administrators, policymakers, consumer organizations, community groups, professional societies, State Medicaid Medical Directors and/or regional Medicare Carriers." It seems to me anyway that healthlawprofs might have quite a bit to say about the choice of topics--and might well want to know about and participate in any proposals from their institutions or communities.
The actual notice is expected to be issued in late winter, for a proposal submission date in late spring 2013.
NIH and Funding Preferences for the Cautious
The National Institutes of Health spends around $30 billion per year on biomedical research around the world. But in an article posted by Reuters last week, according to some experts, the money is not going to the scientists who have the greatest impact on research and advancement of science, but to scientists who are engaged in conventional, incremental scientific research, not the true innovators. According to the article, only 40 percent of the 700 primary authors of the biomedical papers published since 2001 that had been cited at least 1,000 times were not serving on NIH panels. Clearly this indicates that the NIH likes its own, rather than original thinkers who might be less well-connected to the establishment.
This means that much of the innovative and creative biomedical research being done today is privately funded. Sometimes, the private funding comes from a reputable, responsible institution, like the Howard Hughes Medical Institute, but sometimes it doesn't. If creative and innovative research is not being funded by the public, then the public will have trouble getting the benefit of the breakthroughs and controlling the risks inherent in novel biomedical research.
Although NIH recently established new grants for "pioneering" research, clearly more needs to be done to persuade the NIH to take greater research risks. NIH should not be falling into the trap that so many private businesses fall into when doing their hiring--wanting to hire somebody who is just like the boss.
Cross-Posted on Healthy Interests
Worth Reading This Week
- Efthimios Parasidis, Justice and Beneficence in Military Medicine and Research, SSRN/Ohio State LJ
- Sara Rosenbaum, Threading the Needle — Medicaid and the 113th Congress, NEJM
- David Orentlicher, NFIB v. Sibelius: Proportionality in the Exercise of Congressional Power, SSRN
- Karen Rothenberg & Lynn Wein Bush, Manipulating Fate: Medical Innovations, Ethical Implications, Theatrical Illuminations, SSRN/Houston J.Health L. P'cy
- Sallie Thieme Sanford, Designing Model Homes for the Changing Medical Neighborhood: A Multi-Payer Pilot Offers Lessons for ACO and PCMH Construction, SSRN/Seton Hall L. Rev.
December 11, 2012
No partial Medicaid expansion
Yesterday CMS issued a memorandum to states answering a series of frequently asked questions regarding implementation of the ACA. Secretary Sebelius answered one of the more high-profile questions to emerge from NFIB v. Sebelius: whether states could receive the ACA's increased federal match for partial Medicaid expansion. The answer is no:
Can a state expand to less than 133% of FPL and still receive 100% federal matching funds? No. Congress directed that the enhanced matching rate be used to expand coverage to 133% of FPL. The law does not provide for a phased-in or partial expansion. As such, we will not consider partial expansions for populations eligible for the 100 percent matching rate in 2014 through 2016. If a state that declines to expand coverage to 133% of FPL would like to propose a demonstration that includes a partial expansion, we would consider such a proposal to the extent that it furthers the purposes of the program, subject to the regular federal matching rate. For the newly eligible adults, states will have flexibility under the statute to provide benefits benchmarked to commercial plans and they can design different benefit packages for different populations. We also intend to propose further changes related to cost sharing.
In 2017, when the 100% federal funding is slightly reduced, further demonstration opportunities will become available to states under State Innovation Waivers with respect to the Exchanges, and the law contemplates that such demonstrations may be coupled with section 1115 Medicaid demonstrations. This demonstration authority offers states significant flexibility while ensuring the same level of coverage, affordability, and comprehensive coverage at no additional costs for the federal government. We will consider section 1115 Medicaid demonstrations, with the enhanced federal matching rates, in the context of these overall system demonstrations.[nh]
December 10, 2012
ACA and Federal-State Partnerships
Historically, public benefit programs have fared better when provided through a federal program rather than a federal-state partnership. Medicare has been a better program than Medicaid for recipients in part because the federal government imposes a uniform standard for eligibility on all states. Under pre-ACA law, adults might lose Medicaid eligibility at income levels below 50 percent of the federal poverty level in some states while retaining Medicaid eligibility at income levels above the federal proverty level in other states. Similarly, when states set eligibility standards for food stamps during the first decade of that program, income thresholds varied from state to state, and residents in many counties were not eligible at all for the program.
ACA does much to address the uniformity problem with the Medicaid expansion that offers Medicaid to all persons with a family income up to 138 percent of the federal proverty level. However, as states are defining their essential benefits packages for plans sold on health insurance exchanges, we are starting to see the expected problems from the parts of ACA that retain a federal-state partnership model. When HHS decided that states would determine the specifics of their essential health benefit packages, it made state-to-state variation inevitable. And as the New York Times reported last week,coverage for acupuncture, hearing aids, infertility treatment, weight loss surgery and other services will vary from state to state.