Monday, July 23, 2012

Affordable Care Act Update

  1. EXPECT THE HEALTH CARE LAW TO REENTER THE HEADLINES
  2. CONGRESSIONAL ACTION RELATED TO ACA
  3. FUNDING ISSUE TAKEN UP IN ANNUAL APPROPRIATIONS BILL
  4. HEALTH AND HUMAN SERVICES: CENTRALIZING POWER
  5. REACTION IN THE STATES
  6. A LEGAL STRATEGY ON IMPLEMENTATION
  7. IMPLEMENTATION LEGAL STRATEGY CUTS TWO WAYS
  8. HHS MANDATE LAWSUITS
  9. MEDICARE CUTS IN ACA TO HARM SAFETY NET HOSPITALS
  10. BUSINESS COMMUNITY REACTION

1. EXPECT THE HEALTH CARE LAW TO REENTER THE HEADLINES

Debate over the healthcare law will rear its head again this week. The Congressional Budget Office (CBO) will release a new report assessing the federal spending and revenue expected under the law. The analysis will take into account the Supreme Court's decision, which upended the cost and coverage picture by making the law's Medicaid expansion optional for states. (Healthwatch)

Most likely voters want Congress to drop its fighting over the healthcare law, according to a new poll weighted toward battleground states. Fifty-one percent of likely voters told pollsters for NPR that it's time for Congress to move on to other issues now that the Supreme Court has issued its ruling on the Affordable Care Act. (Healthwatch) We expect this to change as it becomes clearer this law is not what was presented to the American people.

- Father, remove the veil. Show this law for what it is at all levels. May the American people not be bought with sugar-coated poison.

- "Do horses run on the rocky crags? Does one plow there with oxen? But you have turned justice into poison and the fruit of righteousness into bitterness." (Amos 6:12)



2. CONGRESSIONAL ACTION RELATED TO ACA

While last week was quieter on the health care front, Senate Minority Leader Mitch McConnell (R-KY) announced his intentions to secure a vote in the Senate on a repeal of the health care law.

"I would remind you all that we had that vote in 2011. Every single Republican voted to repeal it," McConnell said at a press conference Tuesday. "We believe it's appropriate to have that vote again and we'll be working to get that kind of vote in the near future." That day, he filed an amendment to the Small Business Jobs and Tax Relief Act that would repeal the law. Senate Majority Leader Harry Reid (D-Nev.) has vowed to block the effort. (Pray for Congress/Healthwatch)

The self-righteousness was running high last week when "A Democratic campaign committee accused Republicans of voting to repeal the healthcare law to maintain their own government-subsidized health benefits, in part. The healthcare law mandates that members of Congress receive coverage through the new insurance exchanges rather than the current Federal Employees Health Benefit Program. Repealing the law would return lawmakers to the program, which allows officials to keep their policies after they retire." (Healthwatch) This is interesting considering members of this group (a) did not come up with that idea, and (b) were the ones opposed to that very provision in 2009. (Politifact) It's not as if those who passed the health care law in 2010 actually wanted to live under it at the time.

- Father, we pray for justice and not politics in Congress. That's a big prayer request, and You are a big God. Heal our land. Heal our leaders and the relationships between them. Pull back this tyranny that is clouding over our land. May we clearly see You at work and give You praise.

- "Then it came to pass on the third day, in the morning, that there were thunderings and lightnings, and a thick cloud on the mountain; and the sound of the trumpet was very loud, so that all the people who were in the camp trembled." (Exodus 19:16)



3. FUNDING ISSUE TAKEN UP IN ANNUAL APPROPRIATIONS BILL

Rep. Denny Rehberg (R-Mont.) on Tuesday released his long-awaited and highly controversial appropriations bill for the Health and Human Services Department. It’s the last of the 12 annual appropriations bills to be released, and will surely become a major issue in Rehberg’s Senate race.

Overall, Rehberg’s proposal would cut the HHS budget by roughly $1.3 billion. It would block the implementation of President Obama’s healthcare law, and the proposal would also eliminate all federal funding for Planned Parenthood.

Supporters of government-funded research say the bill would also eliminate the Agency for Healthcare Research and Quality (AHRQ) — a previously non-controversial agency that hands out research grants. AcademyHealth, which represents health researchers, urged its members to “respond quickly and declaratively to this attack on research.” (Healthwatch)

- Father, we thank You for the leadership of Rep. Rehberg. May his tribe increase. May those kinds of policies that honor you be given a lasting place in American public policy.

- "Purify every garment, everything made of leather, everything woven of goats’ hair, and everything made of wood." (Numbers 31:20)



4. HEALTH AND HUMAN SERVICES: CENTRALIZING POWER

Remember the PowerPoint slide for the Defense Department's surge strategy in Afghanistan, or the Pentagon's Life Cycle Management System? There is one for HHS now, too:



Notice one key difference in this slide: it has a very defined center. The power of the Secretary for Health and Human Services has greatly increased under this law. He or she can nearly throw money around at will as bait to the states to hook them into the federal programs.

Healthwatch: "In the two weeks since the court issued its decision, the Health and Human Services Department has pushed out new grants, new policies and a new rhetorical standby: It’s time to get on board."

The administration also used the tragedy of the wildfires in Colorado into a opportunity: "President Obama announced last week that he would provide healthcare coverage to the hundreds of firefighters battling wildfires in Colorado. The Office of Personnel Management (OPM) issued a regulation Tuesday implementing the policy. In addition to covering firefighters' families, OPM also said it will allow other agencies to request coverage for temporary workers who are 'similarly situated to firefighting personnel.'" (Healthwatch)

Sen. Tom Coburn (R-Okla.) is questioning the Obama administration's authority to immediately provide federal firefighters with health insurance. In a letter Friday, Coburn asked the Office of Personal Management (OPM) to defend the decision with a legal analysis and several cost assessments. "Routine questions about the impact of the regulation currently remain unanswered," Coburn wrote to OPM Director John Berry. He added that the firefighters "are to be commended for their service." (Healthwatch)

- Father, we thank you for God-honoring friends of the President like Senator Tom Coburn who are willing to speak up for the rule of law. We ask you to restrain the expansion of federal executive power and raise up more leaders from both sides in all regions of the country to do the same.

- "Faithful are the wounds of a friend." (Proverbs 27:6)



5. REACTION IN THE STATES

The typical low-key summer gathering of the nation’s governors was anything but subdued this year. The U.S. Supreme Court’s recent decision leaving it up to the states whether to expand their Medicaid programs topped headlines coming from the National Governors Association’s two-day meeting held in Williamsburg, Va., that began July 13.

As Stateline has reported, Medicaid expansion may be a tough fiscal call for some states. Governors of both parties have indicated they want more time to study the impact of expanding their programs with the help of federal money. (Pew Center on the States)

Florida Gov. Rick Scott and Iowa Gov. Terry Branstad balked at the idea of expanding their states’ Medicaid ranks, saying that their budgets cannot take on additional entitlement spending. (Healthwatch)

Michigan Gov. Rick Snyder will "likely be comparing notes with GOP legislative leaders over whether it will be a good idea in 2014 to extend Medicaid to around 500,000 more low-income residents with the help of $2 billion annually in federal aid." (The Detroit News)

As a Democratic candidate for governor, Jay Nixon pledged to expand Medicaid coverage as his "first order of businesses." During his first year as governor, he failed to persuade the Republican-led legislature to pass a relatively moderate Medicaid expansion. Now up for re-election, Nixon is refusing to take a position on whether Missouri should embrace a comparatively larger Medicaid expansion called for under President Barack Obama's health care law. (Missourian)

A nearly year-long effort to reshape Georgia's Medicaid program has largely been put on hold amid uncertainties surrounding the U.S. Supreme Court's recent health care law decision and effects of the November elections. (The Atlanta Journal-Constitution)

Gov. C.L. "Butch" Otter named two working groups to study whether Idaho should establish an insurance exchange and expand Medicaid eligibility. The 26-person list released Friday includes more than a half-dozen doctors, as well as numerous executives and lobbyists from insurance companies and hospitals. And though the list includes numerous proponents of establishing an Idaho insurance exchange, the Republican governor also added the head of the Idaho Freedom Foundation, a free-market advocate demanding such reforms be spurned. (Idaho Statesman)

State lawmakers in Kentucky have found a new way to thwart the implementation of President Obama's healthcare law: blocking the state from renting office space for new healthcare employees—a new illustration of just how deeply Republicans' opposition to the healthcare law runs. (Healthwatch)

All this action in the states amid reports that...

A new report out Tuesday concludes that six major U.S. states will face mounting fiscal crises as healthcare spending continues to spiral out of control and the federal government tries to rein in its own budget deficit in the coming years. The non-partisan State Budget Crisis Task Force looked at California, Illinois, New Jersey, New York, Texas and Virginia. (On The Money)

Rep. Gingrey editorial: States such as Georgia, which requires a balanced budget by law, will be forced to cut funding elsewhere, such as education or infrastructure investment. Requests by governors of both parties for greater flexibility in determining Medicaid eligibility have fallen on deaf ears. In response, I’ve introduced H.R. 1683, the State Flexibility Act, which fully repeals these onerous regulations and allows states to take responsible, common-sense steps to balance their budgets while simultaneously lowering federal entitlement spending.

- Father, we know states don't have a Fed that can call up some "quantitative easing" and just print money to bail them out of their fiscal problems. We ask for wisdom, vigilance and endurance among our states' governors and legislatures. Even the "left coast" and "blue states" have realities they must face, and we ask you to give them honesty, wisdom, and courage to pursue fiscal policies that honor You. And we ask that Congress and the federal government would relinquish its hold and give the states the freedom to do so.

- "Moreover you shall select from all the people able men, such as fear God, men of truth, hating covetousness; and place such over them to be rulers of thousands, rulers of hundreds, rulers of fifties, and rulers of tens. And let them judge the people at all times. Then it will be that every great matter they shall bring to you, but every small matter they themselves shall judge. So it will be easier for you, for they will bear the burden with you. If you do this thing, and God so commands you, then you will be able to endure, and all this people will also go to their place in peace." (Exodus 18:21-23)



6. A LEGAL STRATEGY ON IMPLEMENTATION

Conservatives see new promise in their criticism over how the Obama administration is implementing new subsidies to help people buy insurance. The IRS has said subsidies will be available in state exchanges and the federally run fallback. But Republicans say that’s an illegal policy, because the Affordable Care Act refers to “an exchange established by the state.” So far, this debate has been mostly carried out in dueling press releases, but a new white paper says the “state exchange” phrasing could be the cornerstone of a new legal challenge to the health law.

Two conservative healthcare experts — Jonathan Adler, a professor at Case Western Reserve University, and Michael Cannon, a scholar at the Cato Institute — said lawsuits could be filed by employers, who are subject to the law’s employer mandate and must pay a penalty if their workers receive government subsidies. (Healthwatch)

This "puts Section 1401 at the center of a burgeoning debate over what Congress meant when it wrote the Affordable Care Act, and how that effects its ultimate implementation." (Wonkblog)

People who earn up to 400% of the federal poverty level—$44,680 for a single person this year—would be eligible to apply for tax credits to help offset the cost of insurance purchased through online marketplaces, known as exchanges. The Congressional Budget Office estimated that the subsidies would average about $4,780 per person in 2014. In all, 18 million people could have their insurance costs subsidized, at a cost of $681 billion through 2021, CBO analysts have said.

The point of dispute stems from the likelihood that many states won't set up exchanges and instead will let the federal government run them. Critics say wording in the health-care law means that federally run exchanges aren't authorized to offer people insurance tax credits.

To fix the problem, the Internal Revenue Service in May issued a regulation that would allow the credits to go to people regardless of whether they purchased insurance through an exchange run by a state or the federal government. The agency said the rule was "consistent with the language, purpose, and structure" of the law. Opponents of the law say the IRS overstepped its authority by making the fix, and they are trying to use the discrepancy to challenge one of the core foundations of the law. (The Wall Street Journal)

All this prompted NPR to conclude: "If you thought last month's Supreme Court ruling upholding the Affordable Care Act was the final word on the legality of the health law, think again. Some conservative scholars believe they may have discovered a flaw that could send the law back to court, or at least cause some big problems for its implementation." (NPR) They give some excellent and understandable background on this legal question. Yahoo! News' The Ticket has more, also.

- Father, we thank You for able legal minds and their diligence for combing through the hundreds of pages of this bill. We ask that the rule of their own law would prevail. May any seeds of its own destruction prevail. May justice reign, and may the hands of any who would overreach be bound and tied up ineffective.

- "I call to remembrance my song in the night; I meditate within my heart, And my spirit makes diligent search." (Psalm 77:6)



7. IMPLEMENTATION LEGAL STRATEGY CUTS TWO WAYS

Many conservatives believe one of the best ways to weaken the Affordable Care Act is to challenge the subsidies it provides to help people buy insurance. If their view of the law starts to succeed, it could be a major threat to the law’s effectiveness. But it could also be a major threat to Republican governors who want to escape Medicaid requirements they say are “unconscionable.”

Subsidies will be available to people who get their coverage through insurance exchanges — new marketplaces where individuals and small businesses can buy coverage. The ACA directs each state to set up an exchange and authorizes a federally run fallback in any state that doesn’t establish its own exchange.

The IRS intends to provide subsidies in both state-run and federal exchanges, but Hatch and other conservatives say that’s an illegal policy. They note that the text of the ACA refers to exchanges “established by the state,” and say subsidies can’t be offered in the federal exchange. The federal government might have to operate at least part of the exchanges in as many as 30 states, at least initially. If subsidies aren’t available in those states, the law’s reach would be severely limited.

But if conservatives’ view of a “state exchange” prevails in court, Republican governors could be saddled with Medicaid requirements they strongly oppose. The healthcare law expands Medicaid eligibility beginning in 2014. It also includes a “maintenance of effort” (MOE) provision that prevents states from cutting their existing Medicaid rolls ahead of the expansion.

As shorthand, most people say the MOE lasts until 2014. Technically, though, it expires once the Health and Human Services Department certifies that an insurance exchange “established by the state … is fully operational” — the same language used to describe exchange subsidies.

In short, Republican governors could be stuck with the MOE forever if conservatives win their argument about the law’s insurance subsidies. (Healthwatch)

In other words, the same argument about a "state exchange" cuts both ways through different parts of the law. If states will not allow the federal government to increase their Medicaid rolls, then the federal government may not allow states to shrink them either.

On May 10, 2012, the House passed H.R. 5652, the Replacement Reconciliation Act of 2012: H.R. 5652 replaces arbitrary across-the-board cuts to defense and other discretionary non-defense programs with common-sense reforms, including a repeal of the Medicaid Maintenance of Effort (MOE) requirement imposed on states: $590 million over ten years. (Rep. Bill Flores) Kaiser Health News reported on this issue during the spring of 2011 leading up to last year's debt ceiling negotiations.

- Father, you are the God of unintended consequences and of strategy. We ask for your hand to move in all these maneuvers to bring forth the policy You want that would honor you, or the means to bring the whole thing crumbling down to honor You that way instead.

- "The foolishness of God is wiser than men, and the weakness of God is stronger than men." (1 Corinthians 1:25)



8. HHS MANDATE LAWSUITS

Challenges to President Obama’s birth-control mandate are piling up in court. Twenty-four lawsuits have been filed against the federal birth-control mandate so far, mostly from religious groups that view the policy as a dangerous erosion of religious freedom.

Foes of the mandate got a boost after Illinois-based Wheaton College — a prominent Protestant school — filed its own suit on Wednesday, joining mostly Catholic-affiliated institutions in arguing the mandate tramples on religious liberty. "The government's mandate unconstitutionally coerces Wheaton to violate its deeply held religious beliefs under threat of heavy fines and penalties," the complaint stated.

The onslaught of lawsuits was spurred by a White House policy that seeks to expand access to birth control by requiring that most employers cover it in their health insurance plans without a co-pay. The policy exempts churches and houses of worship, but not religiously affiliated institutions such as hospitals and universities.

The president announced an “accommodation” after a backlash to the policy that allows employees of religiously affiliated institutions to receive birth control directly from the insurance company. But Catholic leaders say the new mandate still erodes religious freedom and want it rescinded.

Some states are also taking the Obama administration to court over the mandate. On Tuesday, a federal judge dismissed a lawsuit from seven states, ruling that they did not have standing to sue over the birth control policy because it does not go into full effect until next year. "The plaintiffs face no direct and immediate harm," wrote U.S. District Judge Warren Urbom. The states in the lawsuit are Texas, Ohio, Florida, South Carolina, Oklahoma, Michigan, and Nebraska. The suit also included several Catholic groups. (Healthwatch)

In other words, for the lawsuit that was dismissed, it was only a question of timing—it was too soon for the lawsuit. Earlier this year the Administration delayed for one year the implementation of its policy with no other change to the policy itself. That was included in the "accommodation."

Aside from the morally objectionable and religious freedom-impinging aspects to the policy, the HHS mandate is also proving to be a waste...

A report from the Guttmacher Institute examined the prevalence of the intrauterine device (IUD) among American women. IUDs are placed in the uterus and can remain there, preventing pregnancy without intervention, for up to 10 years. The study warned, the use of IUDs and equivalent methods was highest among women already past the average age for giving birth to a child. The Affordable Care Act requires most health insurance plans to cover IUDs with no patient co-pay starting next month. (Healthwatch)

- Father, if there were ever an example of an agenda that was ineffective or completely masked from its real intended consequences, this could seem to be it. Few times in all American history has the threat been greater, and fewer still the moments of opportunity for this generation today. May you raise up many colleges among the Council for Christian Colleges and Universities and their student bodies. Nowhere would be a greater foothold and advance for the enemy than in institutions currently responsible for the greatest number of prime targets for the enemy with this contraception policy. May many see the threat, rise up, and respond clearly and effectively.

- "For I will defend this city, to save it for My own sake and for My servant David's sake." (2 Kings 19:34)



9. MEDICARE CUTS IN ACA TO HARM SAFETY NET HOSPITALS

In Washington, the parallel tracks of the health care debate and the budget debate are actually intertwined. One of the great ironies in the last few years has been that one party condemns the other for proposing to make cuts to Medicare after that same party actually made cuts to Medicare already in the 2010 health care law. This is now coming to the surface. Assuming the law is implemented as designed...

When Medicare begins adjusting hospital payments in October based on quality, one of the primary metrics will be patient experience ratings that cover everything from the communication skills of doctors and nurses to their promptness in responding to complaints about pain. A new study finds that this change may add to the financial troubles of safety net hospitals, which primarily serve poor patients.

The study in the Archives of Internal Medicine found that safety net hospitals tend to get poorer marks from patients than do other hospitals. On average, they drew top ratings from 63.9 percent of patients while the hospitals that treated the fewest poor people got top ratings from 69.5 percent of patients.

Even more worrisome for the safety net hospitals, the gap between how their patients rate them and the scores that other hospitals get has widened in the four years that hospitals have had to publicly report their survey results.

If the trend continues, it means safety net hospitals will be at a disadvantage when the Centers for Medicare & Medicaid Services uses the scores to dole out bonuses and penalties that will ultimately amount to 2 percent of regular Medicare payments.

In the first year of the Hospital Value-Based Purchasing program that kicks in this October, patient experience scores will determine 30 percent of the bonus, with the rest being determined by how hospitals adhere to basic guidelines for clinically recommended care. The hospitals that perform best will gain money, while those that lag in scores and improvement over time will end up with less. (Kaiser Health News)

- Father, we pray for freedom and a free market for health care. Put government back in its place of punishing criminals and praising the virtuous. Pregnancy is not a disease; it's a blessing from You.

- "Governors ... are sent by him for the punishment of evildoers and for the praise of those who do good." (1 Peter 2:14)



10. BUSINESS COMMUNITY REACTION

The Supreme Court decision allowing states to block Medicaid growth without a penalty threatens the profits of companies hoping to manage care for the new beneficiaries. Texas Gov. Rick Perry is one of more than half a dozen Republican governors resisting the federal Medicaid windfall set to begin in 2014. But if there’s one thing more powerful than Republican governors' dislike of the Affordable Care Act, many believe, it may turn out to be the business interests in their own states.

A higher portion of Texans lack coverage than residents of any other state. A Texas Medicaid expansion would generate $100 billion in federal money for the state over a decade, according to the state Health and Human Services Commission, and furnish coverage to an estimated 2 million Texans. At the same time it would generate nearly $1 billion in annual Texas revenue for Amerigroup and WellPoint, calculates Carroll.

Quiet for now, insurers are expected to join hospitals and patient advocates to fight for Medicaid expansion and what are enormous amounts of money, even by Washington standards. Nowhere are the dollars bigger than in Perry's state, where one in four lacks health coverage. (Kaiser Health News)

In the wake of the Supreme Court's health care decision, several companies with 50 or more full-time workers have embarked on a quest. Their aim: Get below 50 and dodge the employer mandate. The health reform law forces them to start providing insurance by 2014 or pay stiff penalties.

The employer mandate penalty relies on "controlled group" provisions, focusing on who controls the company -- not necessarily what they do. That rule could also ensnare smaller firms, though. A business owner who employs 50 or more at completely different companies -- say, 25 at a car repair shop and 25 at a restaurant -- would have to provide insurance at both, even if each falls below the threshold.

It could also affect married couples. Tax law generally assumes a person owns interest in their spouse's business. That means small business owners who are married to each other should take steps to ensure the Internal Revenue Service, which will enforce the mandate, won't combine their staff.

It's still unclear how the IRS will enforce the rules, according to Jennifer Kraft, a labor attorney with the Seyfarth Shaw law firm in Chicago. However, any prolonged battle would have to be sorted out in court.

The other way business owners are planning to deal with the law is a devastating one. They plan to cut staff and switch full-time employees to part-time, which the law classifies as less than 30 hours per week. (CNNMoney)

- Father, we ask for business leaders to stand up for justice in health care in their states. We ask that this law not be used to undermine marriage any further in this country. Rebuild our foundations on You and your Word. Father, we thank you for raising up leaders like Governor Rick Perry to stand up for their states. May he and others like him be effective, just as you have raised up leaders like Angela Merkel in Germany.

- "And He said to them, 'Why did you seek Me? Did you not know that I must be about My Father's business?'" (Luke 2:49)

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