Obamacare, Trump and a lawsuit: How industry is reacting, Mental Health and Back to Court!

Picture1.Trump and obamacare the wasps nestSorry for the delay with this week’s post but with all my travels through Europe the Internet connection was not secure enough to send this edition. So, here it is with a bit more regarding Obamacare and President Trump. However, it was interesting again to hear from some of my travel associates how they were satisfied with their type of socialized medicine, but that there were many shortcomings including long wait to see their doctors and with the care that they received. One additional point was made that the dental care had become unreliable since the dentists finally decided not to participate in the national dental plan in England due to the poor payment schedule and the government regulations. My wife and I were warned to be careful as a nation for what we really want the government to control. Also, the Brits told us that there wasn’t enough money to cover the needs of health care for all in their country.

Susannah Luthi’s piece on Obamacare and Trump deserves mention as we go on to discuss alternatives. The Trump administration’s decision to support eliminating the entire Affordable Care Act has riled lawmakers and industry alike as they navigate the line between politics and the potential practical impact of the lawsuit.

The Justice Department’s politically volatile move last week to agree with a Texas judge’s ruling against the law sparked a political firestorm not likely to end soon in the ramp-up to 2020 elections. It has already inspired calls for a GOP replacement plan.

But as the case wends its way through the 5th U.S. Circuit Court of Appeals, and potentially the U.S. Supreme Court after that, healthcare business goes on as usual across the country and likely will continue to do so as legal experts are skeptical the lawsuit will succeed.

“From my perspective, anything that would happen to the law is at best a year away,” said Dave Schreiner, CEO of Katherine Shaw Bethea Hospital, an 80-bed rural facility in Dixon, Ill. He is also the chair of the American Hospital Association’s Section for Small or Rural Hospitals. “It’s hard from a strategy perspective to react to anything like that.”

Last week, just after the Justice Department made its statement, Schreiner held a three-year strategic planning retreat with his board of directors.

“The ACA was not part of that discussion,” he said.

Instead, the organization’s discussion delved into the Trump administration’s regulations that touch industry’s day-to-day operations — such as last year’s regulation to cut Medicare Part B reimbursement to 340B hospitals and setting some Medicare site-neutral payment rates.

“Those have the opportunity to impact us very urgently and negatively,” Schreiner told Modern Healthcare, noting the 340B drug discount program in particular.

But in Washington, the industry trade groups on the front-lines of policy battles say there is plenty of reason to worry or at least keep their guard up.

“The important thing for the industry is to keep in mind the old saw about, ‘Don’t listen to what they say, watch what they do,'” said Chip Kahn, president, and CEO of the Federation of American Hospitals. “And that being the case, this position is a reminder that the administration ultimately supports policies that are likely to mean less coverage rather than more. And we need to prepare ourselves for that to continue.”

Ceci Connolly, president, and CEO of the Alliance of Community Health Plans which represents not-for-profit insurers, is also taking the administration’s position extremely seriously. On Monday her group filed an amicus brief in the lawsuit on Monday, supporting the ACA and the Democratic state attorneys general who will defend it.

America’s Health Insurance Plans (AHIP), the American Medical Association and the American Hospital Association also filed amicus briefs on Monday.

“If you look at small nonprofits, we don’t have a lot of extra dollars to spend on filing court briefs, so I think this indicates how seriously we are taking this threat — that we have taken this step to articulate, we hope very clearly, to the court that this would be incredibly detrimental on so many levels,” Connolly said.

She called the president’s move a “complete game-changer, with no replacement plan.”

Axios over the weekend reported that President Donald Trump doesn’t expect the lawsuit to succeed and made the move out of political considerations. Joseph Antos of the American Enterprise Institute characterized the lawsuit move as a “particularly awkward play” aimed at Trump’s political base and the administration’s approach as a “short track to nowhere.”

Last week, Trump over Twitter and in Congress declared the Republican party the “party of healthcare,” and promised a new and better plan, although Republicans failed to pass a replacement in 2017 when they controlled both chambers of Congress.

The gap between political rhetoric around the lawsuit and what’s likely to happen next makes for a confusing landscape for GOP lawmakers to navigate.

Sen. Susan Collins (R-Maine), a moderate, urged Attorney General William Barr in a letter Monday to reject the administration’s stance on the Obamacare lawsuit.

“This surprising decision goes well beyond the position taken by the department last June, and puts at risk not only critical consumer provisions such as those protecting individuals suffering from pre-existing conditions but also other important provisions of that law,” Collins wrote to Barr.

Sen. Roy Blunt (R-Mo.), a member of Republican leadership in the Senate, last week emphasized that the lawsuit’s fate depends on the 5th Circuit rather than the president.

“From my point of view, I don’t want to presuppose what the courts are going to do,” he said. “Certainly, the Court of Appeals has the entire record that is not dependent on the government’s arguing its past position.”

On the regulatory side, the administration is pushing for industry-specific policies on healthcare, including site-neutral payment policies and 340B cuts, as well as policies hospitals favor like rolling back Medicare red tape.

Not all of the rules are partisan: the site-neutral payments, in particular, have bipartisan support from policy analysts.

On the insurance front, the White House has homed in on expanding association health plans and short-term, limited duration plans.

But industry representatives in Washington, who watch those regulations for their impact on profits, characterize the president’s stance on the lawsuit as part of the regulatory picture.

“When you couple (the lawsuit) with other efforts on association health plans and short-term plans, you begin to have a higher degree of concern,” Connolly said.

Kahn also argued that the administration’s regulations are in line with its strategy on the lawsuit.

“I think when you look at the different issues (around the regulations), I don’t think my concern about this lawsuit necessarily overshadows my concern about any of those other matters,” he said. “There’s a strategic reason why the president chose to take this position on the lawsuit, and it reflects a policy that HHS carries out every day, in its attitude toward coverage provisions of the ACA.”

Attacking the ACA Is an Attack on Mental Health: The Sequel

The threat is even more real

This article is adapted from a blog post on Sept. 20, 2018, when the author anticipated the consequences of a possible federal court ruling declaring the unconstitutionality of the Affordable Care Act.

Micheal Friedman had reported that the Affordable Care Act(a.k.a. Obamacare) was ruled unconstitutional by a federal court in Texas in December. That ruling has been appealed, and now the Justice Department has asked that the ruling is upheld. If that happens, millions of people will lose health coverage, including coverage for mental health and substance abuse treatment.

Amazing! At a time when everyone agrees that access to treatment is critical to fighting the opioid epidemic and that mental health services fall woefully short of meeting America’s need; a court ruling could deprive tens of millions of people of coverage for mental health and substance abuse services.

The Affordable Care Act increased access for these services for those tens of millions by increasing coverage generally, by mandating that the health coverage purchased through the federal and state health exchanges include coverage for mental health and substance abuse treatment, and by requiring coverage of pre-existing conditions — including mental disorders. It also required parity — i.e., that payment for behavioral health services be on a par with physical health services, making such services more affordable.

Before the Affordable Care Act, many health insurance plans for small groups or individuals and occasionally for large groups did not cover the behavioral cost at all or only at a great additional cost. The amount of coverage was also usually very limited. Typically, there were caps on numbers of covered outpatient visits and of inpatient days per year. Co-pays were typically 50% rather than 20%. Annual and lifetime caps were common, which might not be a problem for occasional acute disorders but left people with chronic conditions without coverage very quickly.

Mental and substance use disorders were also among the pre-existing conditions for which coverage could be and often was denied.

Federal legislation prior to the Affordable Care Act addressed some of the problems related to lack of parity, but not all. And parity was only required if a health plan included behavioral health coverage, not if the health plan covered only physical health conditions — a widely used option open to the purchasers of health plans.

And, prior to the ACA, no one — not large employers or small employers or individuals — was legally obliged to buy health insurance at all.

The ACA addressed all of these problems. Employers — except very small employers — were required to provide coverage for their employees (some with subsidies). Medicaid eligibility was extended to more working poor people. Individuals who did not have coverage through work, Medicare, Medicaid, the State Child Health Insurance Program, or the VA were required to purchase coverage (some with subsidies). And the small group and individual plans purchased through the federal or state health exchanges were required to include coverage for mental health and substance abuse disorders.

The original expectation was that changes under the ACA would provide behavioral health coverage for as many as 62 million people. The decision of several states not to extend Medicaid to larger populations and a subsequent decision not to penalize people who did not purchase insurance resulted in some shortfall. Nevertheless, there are still tens of millions of people with behavioral health coverage today who did not have it prior to the ACA.

Of course, not all will lose coverage if the ACA falls. Some employers who previously did not provide behavioral health coverage may decide to do so. Some individuals could continue to buy plans with such coverage — if such plans are affordable.

But that is unlikely. If people who do not believe they need coverage for mental health or substance abuse services opts for cheaper plans without behavioral health coverage — or no plans — the cost of plans with such coverage will rise because the people who buy them are likely to use them. The insurance industry refers to this as “adverse selection.”

If our nation really wants to have a health insurance system that will help to address the opioid epidemic and the vast underserviced of people with mental disorders, it must make sure that behavioral health coverage is affordable. It must also require coverage of people with pre-existing conditions. And it must enforce parity requirements.

To do this, the Affordable Care Act must stay in place unless or until a viable alternative is created. Swatting it down suddenly by court decree will have devastating consequences for millions.

 

Trump’s battle with ‘Obamacare’ moves back to the courts

Ricardo Alonso-Zaldivar noted that after losing in Congress, President Donald Trump is counting on the courts to kill off “Obamacare” as I started off this post. But some cases are going against him, and time is not on his side as he tries to score a big win for his re-election campaign.

Two federal judges in Washington, D.C., this past week blocked parts of Trump’s health care agenda: work requirements for some low-income people on Medicaid, and new small business health plans that don’t have to provide full benefits required by the Affordable Care Act.

But in the biggest case, a federal judge in Texas ruled last December that the ACA is unconstitutional and should be struck down in its entirety. That ruling is now on appeal. At the urging of the White House, the Justice Department said this past week it will support the Texas judge’s position and argue that all of “Obamacare” must go.

A problem for Trump is that the litigation could take months to resolve — or longer — and there’s no guarantee he’ll get the outcomes he wants before the 2020 election.

“Was this a good week for the Trump administration? No,” said economist Gail Wilensky, who headed up Medicare under former Republican President George H.W. Bush. “But this is the beginning of a series of judicial challenges.”

It’s early innings in the court cases, and “the clock is going to run out,” said Timothy Jost, a retired law professor who has followed the Obama health law since its inception.

“By the time these cases get through the courts there simply isn’t going to be time for the administration to straighten out any messes that get created, much less get a comprehensive plan through Congress,” added Jost, who supports the ACA.

In the Texas case, Trump could lose by winning.

If former President Barack Obama’s health law is struck down entirely, Congress would face an impossible task: pass a comprehensive health overhaul to replace it that both Speaker Nancy Pelosi and Trump can agree to. The failed attempt to repeal “Obamacare” in 2017 proved to be toxic for congressional Republicans in last year’s midterm elections and they are in no mood to repeat it.

“The ACA now is nine years old and it would be incredibly disruptive to uproot the whole thing,” said Thomas Barker, an attorney with the law firm Foley Hoag, who served as a top lawyer at the federal Health and Human Services department under former Republican President George W. Bush. “It seems to me that you can resolve this issue more narrowly than by striking down the ACA.”

Trump seems unfazed by the potential risks.

“Right now, it’s losing in court,” he asserted Friday, referring to the Texas case against “Obamacare.”

The case “probably ends up in the Supreme Court,” Trump continued. “But we’re doing something that is going to be much less expensive than Obamacare for the people … and we’re going to have (protections for) pre-existing conditions and will have a much lower deductible. So, and I’ve been saying that, the Republicans are going to end up being the party of health care.”

There’s no sign that his administration has a comprehensive health care plan, and there doesn’t seem to be a consensus among Republicans in Congress.

A common thread in the various health care cases is that they involve lower-court rulings for now, and there’s no telling how they may ultimately be decided. Here’s a status check on major lawsuits:

— “Obamacare” Repeal

U.S. District Court Judge Reed O’Connor in Fort Worth, Texas, ruled that when Congress repealed the ACA’s fines for being uninsured, it knocked the constitutional foundation out from under the entire law. His ruling is being appealed by attorneys general from Democratic-led states to the 5th U.S. Circuit Court of Appeals in New Orleans.

The challenge to the ACA was filed by officials from Texas and other GOP-led states. It’s now fully supported by the Trump administration, which earlier had argued that only the law’s protections for people with pre-existing conditions and its limits on how much insurers could charge older, sicker customers were constitutionally tainted. All sides expect the case to go to the Supreme Court, which has twice before upheld the ACA.

— Medicaid Work Requirements

U.S. District Court Judge James E. Boasberg in Washington, D.C., last week blocked Medicaid work requirements in Kentucky and Arkansas approved by the Trump administration. The judge questioned whether the requirements were compatible with Medicaid’s central purpose of providing “medical assistance” to low-income people. He found that administration officials failed to account for coverage losses and other potential harm, and sent the Health and Human Services Department back to the drawing board.

The Trump administration says it will continue to approve state requests for work requirements, but has not indicated if it will appeal.

— Small Business Health Plans

U.S. District Court Judge John D. Bates last week struck down the administration’s health plans for small business and sole proprietors, which allowed less generous benefits than required by the ACA. Bates found that administration regulations creating the plans were “clearly an end-run” around the Obama health law and also ran afoul of other federal laws governing employee benefits.

The administration said it disagrees but hasn’t formally announced an appeal.

Also facing challenges in courts around the country are an administration regulation that bars federally funded family planning clinics from referring women for abortions and a rule that allows employers with religious and moral objections to opt out of offering free birth control to women workers as a preventive care service.

I thought that I laid out fixes for the Affordable Care Act in my last three posts so now let us look at “alternative solutions”.

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