With dozens of challenges to the Affordable Care Act making their way into court and the courts’ holdings falling strictly along party lines – judges appointed by Democratic presidents find the individual mandate constitutional, and judges appointed by Republican presidents find the mandate (or in Judge Roger Vinson’s case, the whole law) unconstitutional – the case to watch may be the one in the 11th Circuit, for which oral arguments were heard in the Court of Appeals this past Wednesday. Observers are watching the 11th Circuit closely, not only because 26 of the plaintiffs are states, but also because of the bipartisan nature of the judges. Randomly chosen from the 10-member group, the three-judge panel that heard Wednesday’s arguments is made up of one Republican appointee and two Democratic appointees. One of the Democratic appointees, though, was a Reagan appointee at the district level first. Though the Affordable Care Act continues to be implemented by CMS, the law's fate seems just as uncertain this week as last week as the week before. With indicators pointing in both directions, the states vacillate between implementing the Act and asserting their rights as states not to.
IN THE COURTS
On Wednesday (6/8), three judges from the 11th Circuit Court of Appeals heard oral arguments in the case brought by 26 states challenging the Affordable Care Act. The states urged the appeals court to affirm Judge Vinson’s January ruling, which overturned the health reform law in its entirety on constitutional grounds. All three judges questioned whether upholding the Affordable Care Act risked opening the door to Congress adopting other sweeping economic mandates. C-SPAN has made an audio recording of the arguments available here: http://www.c-span.org/Events/Court-Hears-Case-on-Obama-Health-Care-Bill/10737422097-1/.
At the request of the court, the Justice Department, the Virginia attorney general's office and Liberty University filed supplemental briefs with the 4th Circuit Court of Appeals in Richmond, Va. The three-judge panel that heard arguments in the case on May 10 asked the parties for additional briefs to address whether the federal Anti-Injunction Act stripped the court of its jurisdiction to decide the lawsuits. The 1867 federal law says a tax can be challenged only after it is paid and the taxpayer unsuccessfully seeks a refund.
On Wednesday (6/1) in a suit brought by a public interest law firm, the Thomas More Law Center, a federal appeals court in Cincinnati expressed concern about the law, especially the requirement that Americans purchase health insurance in coming years or face financial penalties. The lawsuit may be dismissed because a plaintiff revealed that she recently did obtain health insurance from her employer.
On Tuesday (6/7), an opinion piece by Richard A. Epstein and Mario Loyola was published in the Wall Street Journal. The two explain that though the constitutional battle over the Affordable Care Act has so far been over the individual mandate, there is another constitutional issue to be considered: Was District Court Judge Roger Vinson correct to rule that the federal government can force states to expand their Medicaid programs as a precondition for continuing to receive matching federal funds for the program?
AT THE AGENCIES
On Tuesday (6/7), HHS announced that states and territories are eligible for up to $40 million to strengthen and coordinate efforts to prevent chronic disease. The initiative is funded by the Affordable Care Act.
On Friday (6/3), CMS proposed a new rule, which would give certain qualified organizations access to patient-protected Medicare data to produce public reports on physicians, hospitals, and other health care providers. According to CMS, these reports will combine private-sector claims data with Medicare claims data to identify hospitals and doctors providing cost-effective care.
On Wednesday (6/1), CMS issued a final rule that will reduce or prohibit payments to doctors, hospitals, and other health providers for services resulting from preventable health care acquired conditions (HACs). The rule is intended to reward those providers who provide high quality care to people in Medicaid, lead to better care for patients, and lower costs. The final rule interprets and enacts a provision of the Affordable Care Act that bars states from paying health care providers for “reasonably preventable” conditions. The final rule takes effect on July 1, 2011, but states have until July 1, 2012 to implement the program. To date, 21 states have instituted nonpayment policies for preventable conditions.
On Monday (6/6), the comment period for the proposed rules of the Medicare Shared Savings Program closed. On Tuesday (6/7), CMS clarified the Pioneer Accountable Care Organization Model. Separate from the Medicare Shared Savings Program, the CMS Innovation Center is offering the Pioneer ACO Model for more experienced organizations and providers who already coordinate care across multiple settings so they can reap the rewards earlier than Shared Savings Participants. CMS extended the deadline for letters of intent and applications to participate in the Pioneer program. The deadline to file a letter of intent has moved from June 10 to June 30, and the deadline for submitting an application has moved from July 18th to August 19th.
On Monday (6/6), HHS announced that it will launch a $42 million initiative, the Federally Qualified Health Center Advanced Primary Care Practice demonstration project. The initiative will test care coordination between doctors and other health care providers of patient-centered medical homes for Medicare beneficiaries. Under the Affordable Care Act, 500 Federally Qualified Health Centers may see changes through the demonstration project by September 1.
The Kaiser Family Foundation has a new issue brief out, which identifies the major provisions in the Affordable Care Act designed to improve care and streamline service delivery for dual eligibiles. The brief can be found here: http://www.kff.org/healthreform/upload/8192.pdf.
IN THE WORKPLACE
A McKinsey & Co. survey of 1,300 employers shows that 30 percent of employers plan to stop offering company-sponsored health coverage after 2014, when most of the Affordable Care Act's provisions kick in. In a June 8th opinion piece in the Wall Street Journal, Grace-Marie Turner, president of the Galen Institute and a co-author of "Why Obamacare is Wrong for America," calculates from the McKinsey findings that as many as 78 million Americans will be forced to find other sources of coverage. The Obama administration argued that the McKinsey report is an outlier, citing studies by the Rand Corporation, The Urban Institute, and Mercer, which found that businesses would not change their insurance programs in response to the Affordable Care Act's implementation.
This Friday (6/17) is the deadline for employers to submit comments to the IRS on issues related to the calculations of full-time and full-time equivalent employees for the purpose of determining who will be subject to penalties under the Affordable Care Act.
IN THE STATES
Georgia Governor Nathan Deal signed an executive order creating a panel that will determine whether to establish a health care exchange under the Affordable Care Act.
The Texas Senate unanimously passed legislation that would overhaul how Texas delivers health care to the poor disabled. The proposed law would expand the privatization of health care services and discourage the use of emergency rooms for non-urgent care. It would also encourage state agencies and private health care providers to focus on improving patient outcomes and allow hospitals and doctors to work together to control costs. The measure will now go to the House for consideration.
Also in Texas, the House Appropriations committee approved a plan that could potentially save the state $700 million in Medicaid costs. The plan entails asking federal authorities for a waiver to experiment with a new payment and incentive system for Medicaid patients. The measure passed in committee 17-2 and now goes to the full House for consideration.
Finally in Texas, a House panel revived legislation to allow Texas to govern federal health care benefits on its own by joining a multistate agreement challenging federal health care law.
The South Carolina department of Insurance received $441,000 for a "consumer assistance" program back in October. According to the South Carolina Herald, the officials in charge are dragging their feet in using the funds to implement healthcare. A grant progress reporter for the quarter ending April 30th showed that spending was only $18,500 and it was for "data processing services."
Florida Governor Rick Scott signed House Bill 97 into law on Friday, which removes coverage for abortions in health care insurance exchanges created by the federal health care reform. The law provides exceptions in the case of rape, incest and a threat to the woman's life. According to the Center for American Progress, Arizona, Louisiana, Mississippi, Missouri, and Tennessee are among the states that already have such laws on the books.
Alabama Governor Robert Bentley issued an executive order to move forward on an Alabama health insurance exchange, which Alabama was interested in before the law was passed.
On Wednesday (6/1), Colorado Gov. John Hickenlooper signed the Health Benefits Exchange Bill into law, making Colorado one of seven states to have voluntary insurance pools, and making Colorado the only state in the country with a bipartisan exchange bill.
In Oregon on Tuesday (6/7), Senate Bill 99, which will create a government regulated and subsidized health insurance exchange, won final approval.
On Friday (6/3), the National Academy of Social Insurance and the Georgetown University Health Policy Institute released a white paper, which addresses health insurance exchanges as "active purchasers." The paper, Active Purchasing for Health Insurance Exchanges: An Analysis of Options, is designed to assist states in implementing health insurance exchanges. The paper notes the wide range of policies states can pursue, depending on local market conditions to leverage higher quality and more affordable insurance for individuals and small businesses.
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To view our compilation of recent health care reform implementation news, click here.