Friday, February 28, 2014
A big part of the job of being a Health Law Prof is to help students understand the intersection of the many legal specialties that comprise the big tent of "Health Law." Wellness Programs are a good way of doing that because one of the key features of the Affordable Care Act is the flexibility it provides employers to link the cost their employees pay for health insurance with the individual employee's participation in a company sponsored "welleness program." Here's an article I wrote explaining how PPACA went about doing that. Here's a link to the Department of Labor's summary of the current rules and a good overview by the law firm Nixon-Peabody. This report from Rand is an overview of what these programs are and how companies have increasingly fallen in love with them. At this point just about every insurance company is offering to create one--here's some information from Aetna.
The problem is, there's very little evidence that these programs do anything to demonstrably improve health (whatever that may mean). And quite a bit that they may promote many different kinds of social injustice.
This article in the Harvard Business Review does a great job describing the kinds of programs that are now descending on employees and how they are creating disatsifaction without any scientifically supportable improvement in "health."
There is also a growing literature suggesting that these programs may disproportionately discourage workers who employers aren't that unhappy to see go--but might not legally be able to actually fire. Here is some very interesting testimony by Jennifer Mathis Director of Programs, Bazelon Center for Mental Health Law
On Behalf of the Consortium of Citizens with Disabilities.
Michelle Mello at Harvard has coined the term "life-style discrimination" to describe the ways Wellness Programs may target individuals employers may perceive as undesirable because they are obese, smoke or have other non-job related characteristics.
Studying Wellness Programs--and the issues they raise--can be an accessible entry point for students who can easily be intimated by the regulatory complexity of health law and can also be a bridge to understanding how fundamentally the Affordable Care Act has affected the way health care will be paid for and delivered as our students begin their careers in advising those struggling to implement these new regulations.
February 28, 2014 in Access, Affordable Care Act, Consumers, Coverage, Disabilities, Effectiveness, Employer-Sponsored Insurance, Genetics, Health Care, Health Care Costs, Health Care Reform, Health Law, Health Reform, HHS, Insurance, Mental Health, Obesity, Policy, Politics, PPACA, Prevention, Public Health, Quality, Reform, Workforce | Permalink | Comments (0) | TrackBack (0)
Friday, January 17, 2014
On Wednesday, Judge Friedman (U.S. District Court, District of Columbia) granted summary judgment to Secretary Sebelius in Halbig v. Sebelius (2014 WL 129023). Individual plaintiffs and small businesses, supported by the Cato Institute, Competetive Enterprise Institute, and others, challenged the availability of tax credits in federally-run Health Insurance Exchanges as exceeding the IRS's administrative authority. The court found that the statute, Congress's intent, and the legislative history of the Affordable Care Act supported the IRS's regulations. Thus, tax credits will be available in Exchanges whether the insurance is purchased on an exchange created by a state or an exchange created by the federal government standing in the state's shoes. The opinion engaged in careful statutory analysis and found the first part of the Chevron test answered the legal questions the plaintiffs presented (though a footnote provided a quick second step analysis anyway). Professor Gluck called this decision a big win for the ACA given that Chevron deference was not necessary in the court's analysis, and the court's methodical statutory analysis is certainly persuasive. (Professor Bagley posted a similarly sanguine analysis here.) By all accounts, this decision is a win for the Obama Administration.
This solid decision ought to end this frivolous litigation, but the plaintiffs have already stated that they will file an appeal. As I discussed here and here, even though these challenges have no statutory traction, the plaintiffs are financially well supported, and they have the means to continue pressing their theories up the federal court ladder. And, the political climate inspires unhappy policy losers to pursue their desired outcome through the judicial branch when they have lost in the legislative and executive branches. Although the decision in NFIB v. Sebelius allowed the ACA to move forward, it opened the courthouse doors to litigation such as this, which pushes legal reasoning in directions that would not have been considered serious before the successes of the NFIB litigation. While I do not believe that Halbig et al. have a real case for preventing tax credits in federally-run exchanges, that will not necessarily prevent another federal court from finding a differently.
Friday, December 27, 2013
Today’s New York Times describes the Republican Party’s search for an alternative to the Affordable Care Act (ACA). With millions of Americans about to receive their health care through ACA health insurance exchanges, GOP members of Congress recognize that reform rather than repeal is the more sensible strategy.
Interestingly, proposals by leading Republicans look very much like ACA and especially like the favored reform proposal of former Obama senior staffer, Ezekiel Emanuel. While Emanuel has embraced ACA’s individual mandate, his preferred approach to reform is a universal voucher for health care coverage (also discussed here). According to the Times, U.S. Representative Paul Ryan soon will release a revised version of a universal voucher that he and U.S. Senator Tom Coburn proposed in the past. The main difference between Emanuel’s voucher and the Ryan-Coburn voucher is in the amount of coverage. Emanuel would cover the full cost of an insurance plan with standard benefits (akin to the essential benefits requirement of ACA), while Ryan and Coburn pegged the value of a voucher at a fixed dollar amount, about 50-60 percent of the cost of a standard insurance policy. As with ACA, Ryan and Coburn would have established health insurance exchanges, required insurers to meet minimum standards and protected persons with pre-existing conditions from discrimination (though perhaps not to the degree that ACA protects them).
There are good reasons to prefer universal vouchers to ACA. When all Americans, rich and poor, are in the same program, the program works much better. Consider in this regard the differences between Medicare and Medicaid. ACA may promise nearly universal coverage, but persons at higher incomes still will receive their health care mostly through their employers rather than through ACA’s health insurance exchanges or the Medicaid expansion. That gives the political influential a much smaller stake in the success of ACA than they would have in a universal voucher program.
It’s not surprising that there is more agreement than disagreement on the specifics of health care reform. As many observers noted during the health care reform debate, the individual mandate for health care coverage began as a conservative alternative to Clinton health care, and Mitt Romney championed an individual mandate as governor of Massachusetts. As with immigration reform and other policy initiatives, the chief stumbling block to progress is not the lack of common ground but the strong political incentives for elected officials to pursue a policy of conflict.
[cross-posted at orentlicher.tumblr.com]
Tuesday, December 17, 2013
Stacey Tovino, a rock-star health law professor and Lincy Professor of Law at the UNLV William S. Boyd School of Law and I were nearly knocked off our chairs at a presentation by Wellesley College Professor Charlene Galarneau, PhD on The ACA Exemption of Health Care Sharing Ministries at the ASBH- American Association of Bioethics and the Humanity’s annual Meeting last month. If you are a health law professor (or hobbyist) and do not yet know what a Health Care Sharing Ministry is, prepare to be surprised. It is NOT insurance but rather a non-binding agreement among people of faith to share their health care costs. As the Alliance of Health Care Sharing Ministries explains, “A health care sharing ministry (HCSM) provides a health care cost sharing arrangement among persons of similar and sincerely held beliefs. HCSMs are not-for-profit religious organizations acting as a clearinghouse for those who have medical expenses and those who desire to share the burden of those medical expenses.” It specifically does not provide the essential services of an ACA qualified plan. Yet those without health insurance who are participating in one of these ministries are exempt from the obligation to purchase insurance or pay a penalty—even though it is highly likely that the cost of their care will fall on the community where they become sick and seek treatment. Read more about it here and here. Health Care Sharing Ministries are among the 9 exemptions in the Affordable Care Act, yet have not attracted significant attention. Given their important role in exempting large numbers of people from the obligation of obtaining health insurance, they deserve a place, or at least a shout-out, in all of our classes.
December 17, 2013 in Access, Affordable Care Act, Coverage, Health Care, Individual Mandate , Policy, Politics, PPACA, Private Insurance, Public Health, Uninsured | Permalink | Comments (0) | TrackBack (0)
Saturday, November 23, 2013
Yesterday's reports on the annual meeting of the Republican Governors Association indicated disarray over the Medicaid expansion, and an opinion piece in the NYT highlighted the common story that only half of states are expanding their Medicaid programs. If CMS is counting, then this tally is correct, as the federal agency can only account for those states that have submitted the proper documentation for expansion. But this is not the only way to consider the states' decisionmaking regarding the expansion. I have just posted a short essay preliminarily detailing research I have performed over the last several months, which reveals that many states currently counted as "not participating" are acting to expand their Medicaid programs. Here is the abstract:
November 23, 2013 in Affordable Care Act, CMS, Constitutional, Health Care Reform, Health Law, Health Reform, HHS, Medicaid, Obama Administration, PPACA, Spending | Permalink | Comments (0) | TrackBack (0)
Tuesday, October 22, 2013
Monday, October 7, 2013
[Cross posted today at Constitution Daily:]
The Affordable Care Act expresses many goals, but its heart is the desire to create a health insurance home for all Americans. The American healthcare system historically exists at the pleasure of a number of stakeholders and is not a coherent whole. This lack of system is reflected in the consistent tensions that underlie American healthcare, most notably federal power versus state power; the collective versus the individual; and the individual versus the state. In creating near-universal health insurance, the ACA has resolved one of those tensions, individual versus the collective, in favor of the collective. To that end, the ACA eliminated many of the practices health insurers used to cherry pick policyholders, which excluded people who need medical care from their risk pools. In so doing, the ACA represented a federal choice to make all people insurable, whatever their wealth, age, medical history, sex, race, or other distinguishing factor.
Despite the redirection this leveling of the health insurance playing field represents, the ACA did not craft a coherent whole out of the American healthcare system. Instead, the ACA remodels the preexisting, unstable healthcare system. In building on the old foundation rather than starting anew, the law retained the historic role of the states in regulating medical matters. To that end, the ACA urged the states to implement two key aspects of its insurance modifications: Health Insurance Exchanges and the expansion of the Medicaid program. The federal government has the power under the Spending Clause to create a federally-run insurance mechanism, but it chose instead to employ cooperative federalism to keep states engaged in healthcare policymaking. The trouble is that some states have not been cooperating with these central legislative goals.
The Exchanges, or Marketplaces, are an instrument through which qualified private health insurance plans can be purchased by individuals or small businesses. The states were offered federal funding to create their own state-run Exchanges, which were operative as of October 1, 2013 (Tuesday last week). Many states created Exchanges, but many rejected them as an expression of their distaste for the ACA. Predictably, many of the states that have refused to create their own Exchanges were the same states that challenged the constitutionality of the ACA. While there is value in dissent, the states that refused to create Exchanges invited more federal power into the state, because rejecting the federal offer for funding to create a state-run Exchange did not halt Exchanges from coming into existence. Instead, the ACA tasked the federal government with operating Exchanges in states that did not create their own. While expressing a desire to protect their state sovereignty, these states have invited federal authority into their borders. Though the Exchanges at both the state and federal levels have experienced some technical glitches this week, it appears that many people are eager to purchase insurance through them and that they have been successful at doing so. The states that rejected Exchanges have not stopped implementation of the law, but their actions have other notable ramifications.
The Medicaid expansion was designed to catch childless adults under age 65 and below 133% of the federal poverty level in Medicaid’s safety net. As with other modifications to the Medicaid program over the years, the expansion added a new element to the Medicaid Act that states could reject, but they could lose all of their funding if they made that choice. The day the ACA was signed into law, states challenged the expansion of the Medicaid program as unconstitutionally coercive. They succeeded on this claim in NFIB v. Sebelius, and the Court rendered the expansion optional for states. Immediately pundits began to question whether the states would participate in the Medicaid expansion.
Though national media tallies make it appear that just over half of the states are participating in the Medicaid expansion, in reality the number is and will be much higher. In almost every state reported as “leaning toward not participating,” and in many states reported as “not participating,” some significant act has occurred to explore implementation of the Medicaid expansion. Some states have special commissions or task forces researching expansion; some state governors have indicated a desire to participate and have included the expansion in the budget; some legislatures have held debate or scheduled it for the next session; and so on. Though some states will not have their Medicaid expansions running by January 1, 2014, it seems very likely that most if not all states will participate in the expansion in the relatively near future.
In the meantime, state non-cooperation will have a direct effect on some of the nation’s poorest citizens. People from 100% to 400% of the federal poverty level are eligible to receive tax credits for purchasing insurance in the Exchanges. In states with no expansion, people above 100% of the federal poverty level who would have qualified for Medicaid will still be able to obtain insurance through federal subsidies in the Exchanges. But, people who are below 100% of the federal poverty level will be too poor for tax-credits and living in states that have not yet expanded their Medicaid programs, therefore they will not be able to enroll in Medicaid either. These very low income people will not be penalized for failing to carry health insurance, but they will not have health insurance either. These individuals will get caught in a health insurance black hole that exists in part because the Court allowed states to refuse Medicaid expansion and in part because of state resistance to partnering in the implementation of the ACA.
State cooperation in the Medicaid expansion is even more important than state participation in the Exchanges, because many thousands of people may not get the access to health insurance that is the promise of the ACA. The debate over the meaning of federalism that swirls around political and academic circles will have a direct and important effect on the people who can least afford it. The good news for them is that Medicaid’s history indicates that all states eventually participate in the program and its amendments, but this week’s implementation of the Exchanges keeps access to medical care through health insurance tantalizingly out of reach.
October 7, 2013 in Affordable Care Act, Constitutional, Health Care, Health Care Reform, Health Law, Health Reform, Medicaid, Obama Administration, PPACA, Private Insurance, Spending, State Initiatives | Permalink | Comments (0) | TrackBack (0)
Tuesday, October 1, 2013
Despite best efforts to prevent the exchanges, or marketplaces, from going on line, today the exchanges have begun to do the work of facilitating a health insurance home for people in the United States. If you live in a state that has declined to create its own exchange, then you should visit https://www.healthcare.gov/, the federal website for the federal health insurance marketplace. Though there were reports of the site crashing, as of 3:00 this afternoon it seems to be working. And, the site will guide you to your state's marketplace site, as necessary. No need to rush though, as open enrollment lasts through March of 2014.
Many probably saw Governor Beshear's op-ed in the New York Times last week regarding the reasons that Kentucky has created its own state-based exchange (and will accept federal funding for the Medicaid expansion), here. The commentary seems even more relevant in the wake of the House Republicans shutting down the federal government over health insurance.
Friday, September 27, 2013
Big news in the world of ACA implementation: CMS approved Arkansas' proposed waiver for an alternative mechanism for Medicaid expansion, which is to be called the Arkansas Health Care Independence Program. Arkansas proposed a premium assistance program, wherein newly eligible Medicaid beneficiaries will obtain insurance through the Arkansas health insurance exchange by receiving financial assistance for premium costs. This will place the new Medicaid population in qualified health insurance plans, i.e. private health insurance, which is administratively more expensive than government-sponsored insurance, but it may help to deal with the problem of "churn" between Medicaid and Marketplace-based private insurance.
CMS's approval of Arkansas' Medicaid demonstration program is significant for a number of reasons, but here I'd like to focus on what I think is one of the biggest: this waiver approval will pave the way for other states that are "undecided" to finally declare their intent to expand their Medicaid programs. I believe this will happen relatively quickly, because most states are already working on expansion. You would not think this is true from the national media's reporting on the Medicaid expansion. If you have been following any of the many color-coded maps depicting the five possible categories of expansion (expanding, not expanding, leaning toward expanding, leaning toward not expanding, and alternative model), you would think that just over half of the states are participating in the Medicaid expansion. The national media has gotten this story wrong, because they do not pick up on the negotiations, investigations, committees, special commissions, and other ways in which the "leanging toward not participating" states are actually exploring how they can expand their Medicaid programs. To understand how dynamic the state decision making is, you have to track the local newspapers that follow every move of the state legislatures and their conversations with their governors (which I have been doing all summer).
After NFIB v. Sebelius was decided, I wrote that most states would still expand their Medicaid programs. It appears that most states are now working toward Medicaid expansion in some form. In future posts, I will explain this dynamic federalism story in more detail. For today, I will emphasize that CMS has opened the door to more state waivers, which will lead to more states expanding their Medicaid programs. Though I am not necessarily on board with federalism by waiver, espcially given states' history of waiver mistakes and failures, I do think that in this instance, alternative expansion is better than no expansion. Otherwise, many of our poorest citizens will be left out of the attempt at national insurance coverage, not paying a penalty, but not having access to much-needed healthcare either.
When it comes to public benefit programs, federal-state partnerships often disappoint. States once determined eligibility for food stamps, and access to the program was not available in many counties across the country. And because states have set the income thresholds for adults to qualify for Medicaid, access to health care coverage has varied considerably from state-to-state for the indigent.
Unfortunately, both because of ACA’s design and the Supreme Court’s decision on the Medicaid expansion, ACA’s implementation relies quite a bit on federal-state partnerships. We are now seeing substantial differences from state to state in the roll out of the statute. As the Wall Street Journal reported earlier this week and the New York Times earlier this month, poor people are much more likely to obtain Medicaid coverage in New Mexico than next door in Texas, and customers for insurance on an ACA exchange will find much more guidance from state officials in Colorado than in Missouri.
The Medicare model of a federal-only program works much more effectively at delivering its benefits than does the Medicaid/ACA model of a federal-state partnership.
Thursday, September 26, 2013
ThinkProgress reports on the following aspect of PPACA:
According to Section 4302 of the Affordable Care Act, the secretary of health and human services may collect any demographic data that she or he believes to be important for understanding and addressing health disparities. In June 2011 Secretary Sebelius announced a plan for including sexual orientation and gender identity in national data collection efforts starting in 2013, in addition to the law’s required categories of race, ethnicity, primary language, sex, and disability status.
I am supervising a paper on this process, and would greatly appreciate any information about the process for this inclusion (who was consulted, administrative processes, etc.), and the anticipated challenges for implementation. The HHS website on the topic is good, but there is always room for more analysis. Please feel free to make a note in the comments, or email me directly.
Thursday, June 13, 2013
For those of you who thought we could forget about ongoing ACA litigation, here's a little update: the issue of premium assistance through tax credits for insurance purchased in federal exchanges is alive and well. The plaintiffs in the recently filed Halbig v. Sebelius claim that the ACA does not permit tax credits in federally run exchanges (opponents state that this is merely a statutory oversight, as I wrote in September.) A nice summary of the ongoing litigation on this issue was published yesterday on California Health Line.
These challenges seem to reveal the angst that the ACA is producing as the January 1, 2014 deadline creeps nearer. They also seem to reveal the upside-down federalism occuring in the states that have rejected the state-based exchanges. Those states have exercised their sovereign prerogative, but they are also inviting more federal power into the state, which aggrandizes federal power. Though I don't think these cases have a strong chance of success, if the plaintiffs are successful, undoubtedly we'll see more testing of the fence by states and private litigants.