And so we enter 2011 with health care reform on two antagonistic tracks. As set forth below, implementation by the Administration continues unabated and resistance by the opposition continues undeterred as well. Stay tuned.
The Centers for Medicare & Medicaid Services (CMS) will release its proposed accountable care organization rule any day now. Though Dr. Berwick is not yet permitted to talk specifically about what will be included in this rule, on Tuesday, February 1, he outlined some of its major themes at the Engelberg Center for Health Care Reform at the Brookings Institution. Twelve ACO-related themes upon which the rule will focus are: 1) Emphasis on a new direction; 2) Focus on the patient; 3) Focus on teamwork; 4) Shift to value and outcome; 5) Reducing unnecessary readmissions; 6) Data richness; 7) Defining successful ACOs; 8) Preserving patient choice; 9) Choosing measurements; 10) Generating capital for ACOs; 11) Enforcement issues; Maintenance of market integrity and market forces; and 12) Payments to ACOs.
On Wednesday, February 2, CMS issued a proposed rule that would require most Medicare-participating providers and suppliers to give Medicare beneficiaries written notice of their right to contact a Medicare quality improvement organization with concerns about the quality of care they receive under the Medicare program. CMS will accept comments on the proposed rule until April 3.
In the wake of Judge Vinson's decision that the PPACA was unconstitutional, Florida has stopped implementing the law and returned $1 million to the federal government. Florida Insurance Commissioner Kevin McCarty said he is temporarily suspending an application for a waiver or adjustment of new health insurance medical loss ratios. Also, McCarty told the Director of the HHS Office of Consumer Information and Insurance Oversight, that Florida would not be spending any of the funds allocated to it for implementation of the insurance exchange program.
Other states have reacted to the Florida ruling as well. On Thursday, February 3, Utah Attorney General Mark Shurtleff decided the ruling is the “functional equivalent” of an injunction, making the policy unenforceable. Also on Thursday, a Kansas House committee approved a bill and constitutional amendment that will exempt Kansas from following the federal health care reform law. The constitutional amendment must be approved by 84 representatives, 27 senators, and a majority of Kansas voters in the 2012 election.
On Wednesday, February 2, Ohio state legislators announced that they will introduce a proposed constitutional amendment targeting the PPACA. The Ohio Health Care Freedom Act would "preserve the freedom of Ohioans to make their own health care decisions," according to supporters, and would amend the state constitution to prohibit "any rule or law from forcing a person, employer or health care provider to participate in a health care system."
On Monday, February 7, the Pennsylvania House Health Committee passed the “Freedom of Choice in Health Care Act,” a Republican-sponsored bill that would shield the state from a key portion of the Patient Protection and Affordable Care act. The Committee Chairman, Matt Baker, said if the bill becomes law, Pennsylvania will have more legal avenues to challenge the federal law in court. Six states — Virginia, Idaho, Arizona, Georgia, Missouri and Louisiana — already have enacted laws similar to the one Baker advocates, while Oklahoma and Arizona each have enacted constitutional amendments that are similarly intended to shield them from the law.
Alaska Governor Sean Parnell said Thursday, February 3, that he has asked his attorney general to advise him on whether implementing and enforcing the Affordable Care Act would cause Parnell to violate his oath of office, which requires him to support and defend the constitutions of the United States and Alaska.
Though Wisconsin Attorney General J.B. Van Hollen said "For Wisconsin, the federal health care law is dead - unless and until it is revived by an appellate court," Wisconsin is still implementing the Patient Protection and Affordable Care Act because if the Supreme Court finds the law constitutional, those states who stop implementing in the interim will be behind in plans to meet deadlines.
After the U.S. District Court for Northern Florida issued its ruling, Sen. Bill Nelson (D-Fla.) issued a resolution, calling for the high court to immediately issue a decision on the law, and on Thursday, February 3, Virginia Attorney General Ken Cuccinelli said his state would make a formal request for the high court to take a direct review of his constitutional challenge of the law. Cuccinelli argued that the conflicting court decisions on the law's constitutionality are creating uncertainty about the law’s implementation and justify an expedited Supreme Court review. Department of Justice officials rejected these requests for "certiorari before judgment."
Other states have responded to the ruling differently. Eight Democratic attorneys general from California, Connecticut, Iowa, Maryland, New York, Delaware, Vermont and Hawaii issued a statement (http://oag.ca.gov/news/press_release?id=2032) defending the PPACA’s constitutionality and vowing to move ahead with implementation. The statement highlights some of the law's consumer benefits, and points out that only two federal judges have ruled against the mandate that everyone buy insurance. Two other judges have upheld the law, and 12 have dismissed similar challenges.
Indiana Governor Mitch Daniels, Wisconsin Governor Scott Walker, Alabama Governor Robert Bentley and three other governors wrote a letter to HHS Secretary Sebelius pushing for six specific changes to the Affordable Care Act, including eliminating some mandates on benefit coverage and a comprehensive plan for income verification of those who are eligible for federal subsidies. The governors said that if these changes are not made, they will likely not operate their own health exchanges, leaving the task to the federal government.
Finally, On Wednesday, February 2, the Senate voted against a repeal of the health care legislation but approved a measure that eliminates the 1099 tax provision, a reporting requirement that would have mandated small businesses to submit IRS tax forms for every vendor to whom it pays more than $600. On Tuesday, February 1, Republican Senators Lindsey Graham and John Barasso introduced a bill that would allow states to opt out of parts of the health care law.
On Wednesday, February 9, the House Education and Workforce Committee will hold a hearing titled "The Impact of the Health Care Law on the Economy, Employers and the Workforce." Also on Wednesday, the Subcommittee on Health of the House Energy and Commerce Committee will hold a hearing on legislation that would amend the abortion provisions of the Patient Protection and Affordable Care Act. On Thursday, February 10, the House Ways and Means Committee will hold a hearing on the impact of the PPACA on Medicare and Medicare beneficiaries, and on Monday February 14th, The Alliance for Health Reform will hold a briefing titled "Shared Medical Decision Making: We're in this Together."
As always, please feel free to contact us with any questions.
To view our compilation of this week's health care reform implementation news, click here.