ACA Update: Delay for "Mid-Size" Employees (Feb 10)
This afternoon, Treasury released for public inspection a final regulation regarding the employer provisions of the ACA. The reg includes an additional delay until 2016 of fines against employers with between 50 and 100 employees when they fail to offer health insurance coverage. We’re reviewing the unofficial version, which can be found at:
The official version is scheduled to be published on the 12.
SGR Update (Feb 6)
6/17/13 HHS releases proposed rule on Exchange, SHOP and Premium stabilization programs
6/3/13 HHS, Treasury and Labor Departments release final rule on Incentives for Nondiscriminatory Wellness Programs in Group Health Plans.
5/31/13 CMS releases updated SHOP rules.
5/31/13 CMS Trustees release annual Medicare solvency report .
5/30/13 White House releases memo on health insurance competition in exchanges, including plans under the MSPP.
5/22/13 Senators introduce bipartisan legislation to boost rehabilitation research at NIH
5/17/13 CMS publishes letter outlining strategies for facilitating Medicaid and CHIP enrollment
5/10/13 IRS issues proposed rule on Medical Loss Ratio, Tax Benefits
5/9/13 CMS issues FAQ on SHOP-only Exchanges.
4/29/13 CMS issues FAQ on various ACA implementation topics
4/23/13 CMS issues FAQ on Summary of Benefits and Coverage requirements of PHS Act §2715
4/22/13 CMS releases marketplace timeline
4/9/13 CMS announces Navigator Funding Opportunity
4/8/13 CMS releases Health Insurance Exchange Establishment Grants Awards List
4/3/13 CMS releases proposed rule on: Exchange Functions: Standards for Navigators and Non-Navigator Assistance Personnel
3/28/13 CMS announces Medicare dashboard to advance ACA goals for chronic conditions
3/22/13 Senate Dems Release FY 2014 Budget Resolution Explanation
3/15/13 CMS releases Final Rule Implementing the Physician Payment Sunshine Act
3/11/13 CMS publishes proposed rule on Establishment of Exchanges and Qualified Health Plans; Small Business Health Options Program
2/21/13 CMS releases Medicare Moving Forward report
10/25/12 Landmark Medicare Settlement has major implications for Medicare benefciaries with disabilities and chronic conditions.
10/10/12 Congressional Research Service releases report on Exchanges.
7/30/12 In a blog written for ID Experts, a full service data breach company, PPSV principal Jim Pyles outlines the reasons why a Health Information Privacy Bill of Rights would help restore the public’s trust that their health information privacy rights will be protected and provide greater certainty for the regulated industry as it implements electronic health information systems. “Why We Need a Health Information Privacy Bill of Rights.”
On June 28, the U.S. Supreme Court announced its decisions in the legal challenge to the health care reform law, the Patient Protection and Affordable Care Act. The court held:
1. The individual mandate is constitutional and may be upheld as within Congress’ power under the taxing clause of the U.S. Constitution.
2. The Medicaid expansion in the law violates the Constitution but this violation can be fully remedied if States have a real choice in deciding whether to expand their Medicaid programs. In other words, the federal government cannot take away existing Medicaid funding if they do not wish to participate in the Medicaid expansion.
3. The remainder of the Affordable Care Act has been upheld.
Congressional Research Service Memo on the Medicaid Expansion Issue of the ACA
6/5/12 HHS Releases First Proposed Rule on Essential Health Benefits Data Collection and Accreditation of QHPs. Additional materials can be found in the accompanying Paper Work Reduction Act (PRA) Notice.
5/16/12 Guidance released on the operation of Federally-funded Exchanges and State partnerships.
4/26/12 IRS releases Notice 2012-31 which provides information and solicits public comment on three approaches to determining whether an eligible employer-sponsored health plan provides minimum value.
4/11/12 CMS Innovation Center announces area they will solicit primary care physicians to participate in the Comprehensive Primary Care Initiative...More.
3/19/12 Department of Labor releases FAQ on Summary of Benefits and Coverage .
3/16/12 HHS releases final rules on the 3 Rs: Reinsurance, Risk Corridors, and Risk Adjustment and Medicaid Eligibility.
3/12/12 Final rule on Health Insurance Exchanges.
2/24/12 CCIIO releases bulletin on actuarial value and cost sharing in state exchanges.
1/13/12 GAO releases report, ""Health Care Quality Measurement: HHS Should Address Contractor Performance and Plan for Needed Measures", finding that NQF has been inconsistent in meeting the initial time frams appoved by HHS.
12/16/11 HHS releases bulletin on essential health benefits in advance of regulations...More
11/15/11 CMCS announces the release of the Medicaid Information Technology Architecture (MITA) Framework, draft Version 3.0, for public comment through December 16...More.
11/15/11 The Centers for Medicare & Medicaid Services announced it will launch demonstration programs beginning in January 2012 targeting improper payments...More.
11/14/11 FDA announces an opportunity for comment on its information collection process for reclassifcation of medical devices...More.
11/10/11 CMS releases final rule that revises DME definition and implements provisions related to the DMEPOS Competitive Acquisition Program… More
11/10/11 The Commonwealth Fund releases multi-national comparisons of health systems data, shows US spending skyrocketing… More
9/29/11 Patient-Centered Outcomes Research Institute (PCORI) announced the Pilot Projects Grant Program... More.
9/29/11 HHS Health Resources and Services Administration (HRSA) and the Substance Abuse and Mental Health Services Administration (SAMHSA) are releasing awards today in an effort to better coordinate care across the health care spectrum...More.
7/11/11 U.S. Department of Health and Human Services proposes framework to establish Affordable Insurance Exchanges...More
7/6/11 Centers for Medicare& Medicaid Services (CMS) announce proposed changes to Medicare home health payments for 2012 to promote greater efficiency and payment accuracy...More
7/1/11 Centers for Medicare & Medicaid Services (CMS) proposes policy and payment changes for outpatient care in hospitals and ambulatory surgical centers...More
6/22/11 The Department of Health and Human Services (HHS) releases amended appeals IFC and Additional Guidance on External Review...More
6/20/11 Centers for Medicare and Medicaid Services (CMS) proposes new standards for Community Mental Health Centers...More
6/17/11 Centers for Medicare and Medicaid Services (CMS) issues guidance to allow limited benefit, or “mini-med” plans, to apply for or renew a temporary waiver from annual limit restrictions through 2013...More
6/6/11 The Department of Health and Human Services (HHS) announced the Federally Qualified Health Center Advanced Primary Care Practice (FQHC APCP) demonstration project, a new Affordable Care Act initiative that will pay an estimated $42 million over three years to up to 500 FQHCs to coordinate care for Medicare patients...More
6/3/11 The Centers for Medicare & Medicaid Services (CMS) today proposed rules that will enable consumers and employers to select higher-quality, lower-cost physicians, hospitals and other health care providers in their area...More
6/2/11 CMS finalized a rule that will prohibit Medicaid from paying for services that are given as a result of a preventable error. It uses Medicare’s list of preventable conditions in inpatient hospital settings as the base, but it provides States the flexibility to identify additional preventable conditions and settings for which Medicaid payment will be denied…More.
5/31/11 HHS to Reduce Premiums, Make it Easier for Americans with Pre-Existing Conditions to Get Health Insurance...More
4/29/11 CMS issues proposed payment rule on Skilled Nursing Facilities.
4/14/11 Integrated Care Demonstrations for Dual Eligibles - Fifteen states have been selected to design new ways to meet the
often complex and costly medical needs of the nations lowest-income and chronically ill citizens...More
4/14/11 New Jersey Early Expansion Waiver - HHS and CMS have approved New Jersey's 1115 Demonstration to expand Medicaid to certain childless adults in the State...More
4/12/11 Cost Estimate for Public Law 112-8, Further Additional Continuing Appropriations Amendments, 2011...More
3/19/11 Department of Labor Public Forum on Automatic Enrollment in Large Employer Health Plans to be held on April 8...More
3/14/11 Changes to Hospital Outpatient Prospective Payment System, etc.; correction....More
3/3/11 Republican Senators pen letter requesting Administration withdraw nomination of Berwick... More.
3/2/11 RWJF Releases Report on Threats to the ACA...More
3/2/11 The Patient-Centered Outcomes Research Institute (PCORI) is hosting a series of stakeholder forums to obtain input on the PCORI’s mission, research priorities and outreach strategies. The third one is in St. Louis, Mo., on Tuesday, March 8…More
3/2/11 Federal Register Notice: Public Meeting of the Consumer Operated and Oriented Plan (CO-OP Advisory Board)...More
2/25/11 CMS Issues Guidance on the "maintenance of effort" (MOE) provisions in the Patient Protection and Affordable Care Act...More
2/22/11 Cost Estimate for H.R. 705, "Comprehensive 1099 Taxpayer Protection and Repayment of Exchange Subsidy Overpayments Act of 2011"... More
2/18/11 Cost Estimate for H.R. 2, "Repealing the Job-Killing Health Care Law Act"...More
2/16/11 House Energy and Commerce Committee holds hearing titled "Health Care Issues Involving the Center for Consumer Information and Insurance Oversight"...More
2/10/11 CMS Notification: Uninsured Americans with Pre-existing Conditions to Gain Coverage through Affordable Care Act...More
2/10/11 CRS Report: Enforcement of Private Health Insurance Market Reforms Under the Patient Protection and Affordable Care Act...More
2/10/11 House Ways and Means Committee meeting on the ACA’s Impact on Medicare...More
2/9/11 House Education and Workforce Committee Holds Hearing on the Impact of the ACA on the Economy, Employers and the Workforce...More.
2/8/11 Congressional Health Care Caucus will host a policy forum on Accountable Care Organizations at 12:30...More.
01/26/11 Congressional Budget Office Releases Report on Budget and Econcomic Outlook for Fiscal Years 2011 Through 2021.
01/12/11 - 01/14/11 IOM holds first public meeting on their consensus study to determine criteria for defining and updating the essential health benefits package. For more information, visit their site here.
12/14/10 HHS Releases Strategic Framework for Multiple Chronic Conditions, which can be found here.
Recent Healthcare Roll Call Votes...
2/2/11 Senate Passes Amendment to Repeal 1099 Requirement in ACA.
Patient Protection and Affordable Care Act: Supreme Court Oral Arguments (March 26-28)
This week, the Supreme Court hears oral arguments with respect to the legal challenges to the landmark healthcare reform legislation entitled the Patient Protection and Affordable Care Act, also known as the Affordable Care Act (ACA). The ACA was signed into law on March 23 two years ago and is considered to be the most prominent legislative achievement of the Obama administration. The impacts of the ACA are far reaching and potentially could impact every American. The law establishes a minimum coverage requirement to ensure all Americans receive, at minimum, what is considered “essential” health care and also would require all individuals to purchase health insurance if they are not already covered. The ACA also expands Medicaid eligibility to individuals with income below 138% of the poverty level.
These provisions, especially the requirement to purchase health insurance and the Medicaid expansion, are extremely controversial. On these issues, the Supreme Court decision will determine if Congress overstepped its bounds. Due to the importance of this case to healthcare for all Americans, as well as the political controversy and the impact the decision could have on the elections in November, the Supreme Court’s decision in this case is one the of the most anticipated in recent history.
The Court will hear arguments on whether the Anti-Injunction Act bars challenges to the requirement for individuals to obtain insurance (the individual mandate) until the mandate is implemented in 2014; the constitutionality of the individual mandate; whether the individual mandate, if found unconstitutional, is severable from the rest of the ACA; and on the constitutionality of the Medicaid eligibility expansion to a new segment of the population. A decision is expected on the issues in June.
For those interested in the briefs filed by the parties and the many amici curiae, copies can be found at the ACA Litigation Blog.
On March 26, the Supreme Court heard arguments on whether the Anti-Injunction Act (AIA) applies to the penalty for not acquiring health insurance coverage as mandated by the Affordable Care Act (ACA). The AIA provides that no suit for the purpose of blocking implementation of a tax will be heard by a court until such time as the tax is paid and contested. The question here is whether the penalty individuals pay if they fail to obtain insurance amounts to a tax which falls under the purview of the AIA. If the Court decides it is a tax under the AIA, the Court cannot consider the challenge to the individual mandate until after the tax is paid, after 2014 when the insurance mandate will be implemented.
Since none of the parties was arguing that the AIA applied, the Court appointed Robert Long as an amicus curiae to argue that it does apply. Mr. Long argued that the AIA is jurisdictional, may not be waived, and as such, the case contesting the mandate should not move forward at this time.
For the United States, the Solicitor General Donald Verrilli agreed that the AIA is jurisdictional but argued that the AIA does not apply to the minimum coverage provision and penalty. This places the United States in the somewhat awkward position of arguing that, although the penalty is not a tax for purposes of the AIA, it is a tax for the purposes of Congress’ constitutional authority to enact the individual mandate.
On behalf of the litigants challenging the individual mandate, Gregory Katsas contended that the AIA is not jurisdictional and that the penalty –in any event—is not a tax under the AIA. Further, Mr. Katsas argued that the challenge to the individual mandate is separate and distinct from a challenge to the penalty and, as such, is not precluded by the AIA.
Today, the Court will hear arguments as to the constitutionality of the individual mandate.
Yesterday, March 27, the Supreme Court heard arguments on whether Congress has the Constitutional authority to require individuals to purchase private health insurance or pay a penalty for not doing so. For the United States, Solicitor General Donald Verrilli appeared before the Court, arguing that Congress does, in fact, have this authority under the Constitution’s Commerce Clause, which authorizes Congress to “regulate Commerce . . . among the several States.” The Solicitor General also contended that the penalty is a legitimate exercise of Congress’ power to tax. (The advocates and the Court spent relatively little time on this point, perhaps because many of the issues as to taxation had been covered in the prior day’s session as to the AIA.) With regard to the Commerce Clause, the government argues that there is an effect on interstate commerce when a person chooses not to purchase health insurance, because everyone eventually needs healthcare, and by not having health insurance, the person will and does shift the cost to others, such as healthcare providers, insurance companies, other people who have insurance, and taxpayers.
A number of Justices were concerned in yesterday’s arguments with identifying the “limiting principle” to this power of Congress. Justice Kennedy, considered the “swing vote” on the Court, raised the issue of whether the mandate changes the relationship between the federal government and individual citizens in a fundamental way, a key question central to the Court’s review of the provision’s constitutionality. On behalf of 26 states challenging the individual mandate, Paul Clement argued that this action by Congress is an unprecedented effort to compel individuals without insurance to enter into the insurance market in order to better regulate commerce, an act which, he argued, exceeds the bounds of the Commerce Clause. He argued that if Congress can require virtually everyone in the United States to purchase health insurance, then Congress would have no limits on its authority to compel the purchase of any commodity and this would be an unprecedented interpretation of Congressional authority.
Michael Carvin, on behalf of the National Federation of Independent Business, reinforced Clement’s arguments. He agreed that there is a distinction between regulating healthcare services, which virtually everyone requires at some point in their lives, and regulating health insurance, a market in which 40 million Americans are not engaged. He argued that Congress does not have the power to promote commerce, but can only regulate existing commerce. The uninsured, he argued, are being compelled to enter commerce so the federal government can then regulate that commerce. Solicitor General Verrilli maintained that because everyone needs healthcare services at some point in their lives, everyone is engaged in commerce - even the uninsured who utilize healthcare services while shifting the cost to those who have insurance - and therefore Congress has the authority to regulate the purchase of health insurance.
An essential element of the Commerce Clause issue is whether there are two separate commercial markets (healthcare service and health insurance). Opponents of the individual mandate insist that there are two separate markets and that Congress is impermissibly mandating that people participate in one market (insurance) in order to resolve issues and problems with the other market (healthcare services). Proponents of the mandate claim that these markets are so inextricably intertwined that they cannot be viewed as separate and distinct. As such, they believe that Congress may regulate both in an integrated manner. In their view, the uninsured who do not participate in the insurance market are already affecting those in the service market by leaving unpaid bills that must then be subsidized by those in the insurance market.
This morning, the Court heard arguments on the severability of the individual mandate from the remainder of the health reform law, and returns this afternoon to hear arguments on the Congressional authority to expand Medicaid eligibility.
National Federation of Independent Business v. Sebelius, Day 3 - Part 1 (Severability):
On behalf of 26 states and the National Federation of Independent Business, Paul Clement argued that if the individual mandate is unconstitutional, then the rest of the Act must fall, since both Congress and the Federal government concede the community-rating and guaranteed-issue provisions cannot stand without the individual mandate and would actually counteract Congress’ basic goal of providing patient protection and affordable care. In his view, these provisions are so integral to the rest of the ACA that the whole Act must collapse if they are invalidated.
For the United States, Edwin Kneedler argued that, if the individual mandate is found unconstitutional, only the community-rating and guaranteed-issue provisions should also be struck. He also mentioned, however, that there should be no reason for the Court even to consider severability since the minimum-coverage provision is fully consistent with Article I of the Constitution. Much of the discussion and questioning asked: who should be responsible for repairing the provisions in the law—Congress or the Court? Additionally, the Court was struggling to identify which provisions of the ACA constituted the heart of the legislation and whether, if they were overturned, the remainder of the Act should be considered invalid as well.
Since none of the parties argued what the lower court had ruled—that all of the other provisions of the law can stand if the mandate is struck down—the Court appointed H. Bartow Farr, III as an amicus curiae to argue that point. He stated that preserving the community-rating and guaranteed-issue provisions would protect Congress’ intention to open the insurance markets to millions of people who were previously excluded. These sections of the ACA and its insurance reform provisions, rather than the individual mandate, were the crown jewel of the legislation according to him and could operate effectively in the absence of the mandate. Further, Farr noted, the Court should not immerse itself in speculating upon issues as whether Congress would have enacted the other provisions of the ACA in the absence of any specific provision. As such, any needed retooling of the statute is uniquely within purview of Congress.
During the afternoon session on March 28, the final session before the Court regarding the ACA, arguments were heard regarding the law’s expansion of Medicaid eligibility and whether this expansion coerces States unlawfully. This was the wild card issue in the case because no judge or court had accepted this contention when the Court agreed to review it.
On behalf of 26 states, Paul Clement argued that the federal government is unduly coercive and that all federal Medicaid funding to States will be rescinded if the States do not agree to go along with this portion of the law. In effect, Clement claimed that Congress has bound the States involuntarily to participating in the Medicaid program and that they have no real choice but to do so.
For the United States, Solicitor General Donald Verrilli asserted that the expansion of Medicaid eligibility is an exercise of the Spending Clause power that complies with all of the limits set forth in the Court's decision in South Dakota v. Dole and will provide millions of Americans with the opportunity to have access to essential health care that they cannot now afford. Under his reasoning, the Medicaid program in general—and the Medicaid eligibility expansion in particular which will almost totally be funded with federal monies—are simply too good of a deal for States to pass up.
In its questioning, the Court seemed intent on determining whether the expansion was just a generous offer or, instead, an offer that the States cannot afford to refuse. Counsel were asked whether the federal government would be required to shut off all Medicaid federal funds if a state failed to comply with the expansion or whether any penalty would be less draconian. Further, even if the loss of federal funding is discretionary, is the threat or mere availability of such enforcement the equivalent of putting a gun to the states’ heads? Surprisingly little time was spent trying to ascertain whether there was a limiting principle to the states’ coercion argument or what the implications of adopting that argument would be for a multitude of other federal programs in which states are enticed (or entrapped, depending on one’s views) into accepting various federal requirements as a condition of receiving federal funding.
Synopsis of the Three Days
It is always hazardous to predict the outcome of any given case, let alone a case as important and complex as this one, based on oral argument and the nature of the Justices’ questioning. Over the coming months, the Justices will draft opinions, negotiate positions and outcomes, and engage in compromise to forge a majority. While it seems clear that there are coalitions of the Court on opposing sides of these issues, the question is: what position or positions will any undecided member(s) gravitate to as a result of this tug of war? Much of the focus seems to rest on Justice Kennedy —frequently the Court’s “swing vote”—who, during the course of the severability argument, asked one of the counsel, “What standard are you asking me to apply?” Whether this was an inadvertent slip of the tongue or a realistic appraisal of how deeply the Court is divided remains to be seen.
PPSV Healthcare Leaders
PPSV held healthcare reform webinars for general audiences as well as tailored programs for physicians, hospitals and chronic, rehab, post acute and long term care providers. For more information or to hear the programs, click here.
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