The 116th meeting of the United States Congress is now underway and Marilyn Singleton, MD, JD is out with a legislative update looking at the health care related bills introduced and under discussion in the first month of 2019.
By Marilyn M. Singleton, MD, JD
The 116th Congress has rolled out new health care legislation. The Republicans squandered their chance to repeal the ACA or otherwise bring medical care back into the hands of patients and physicians.
One could look at the push for Medicare for All as an acknowledgement that the ACA was not a success. The House Medicare for All caucus is in the process of revising the prior Medicare for All bill that had been floating around since 2003. Apparently, the new bill will track Bernie Sanders’ Senate bill, S. 1804 (https://www.congress.gov/bill/115th-congress/senate-bill/1804) which is more fleshed out. Sanders plans to finance his bill with the following:
- 7.5 percent income-based premium paid by employers; 4 percent income-based premium paid by households;
- make the personal income tax more progressive;
- taxing capital gains and dividends the same as income from work;
- limit tax deductions for the wealthy;
- make the estate tax more progressive;
- establish a wealth tax on the top 0.1 percent;
- close the Gingrich-Edwards Loophole and create parity for wealthy business owners. Corporations would be made to pay their “fair share” by imposing a one-time tax on currently held offshore profits; imposing a Fee on Large Financial Institutions; (“This option closes the Gingrich-Edwards loophole which allows individuals who own and run an S-Corporation to game the system and avoid paying payroll taxes by claiming some income as business profits.”);
- repealing corporate accounting gimmicks. (“This option would eliminate the “last-in, first-out” (LIFO) accounting method that allows corporations to manipulate their inventory and make it appear like they have lower profits.”)
Sanders’ white paper, “Options to Finance Medicare for All” : https://www.sanders.senate.gov/download/options-to-finance-medicare-for-all?inline=file.
Out of Network Medical Billing
As the AAPS lawsuit against California’s AB 72 works its way through the courts, the federal government is addressing the issue. Sen. Bill Cassidy, MD (R-LA) along with Sens. Tom Carper (D-Del.), Todd Young (R-Ind.), Michael Bennet (D-Colo.) and Chuck Grassley (R-Iowa) have produced a draft bill, the Protecting Patients from Surprise Medical Bills Act, that would prevent an out-of-network health care provider from charging additional costs for emergency services to patients beyond the amount usually allowed under their insurance plan. The proposal would have the insurer pay any additional charges – which would be limited by law. The bill would also require health care providers to give written notification to patients who receive emergency care at an out-of-network facility before they receive any follow-up nonemergency care. That move is intended to warn patients before they are subject to additional costs at an out-of-network hospital. Patients also could not be charged more for care from out-of-network doctors at an in-network hospital.
On January 30, 2019, H.R. 861, a bill to amend title XVIII the Social Security Act to prevent surprise billing practices was introduced by Rep. Lloyd Doggett (D-TX) and referred to the House Energy and Commerce and Ways and Means Committees.
The text is not available and this title on the surface applies only to Medicare.
The ACA Lives On
On January 3, 2019, H.R. 83, Responsible Path to Full Obamacare Repeal Act was introduced by Rep. Andy Biggs (R-AZ) and referred to the House Appropriations Committee, the Education and the Workforce, and 6 other committees. This bill would repeal the Patient Protection and Affordable Care Act and the Health Care and Education Reconciliation Act of 2010, effective at the beginning of FY2020. Provisions of law amended by those Acts would be restored.
On January 3, 2019, H.R. 185, the ObamaCare Repeal Act, was introduced by Rep. Steve King (R-IA) and referred to the House Committee on Appropriations Committee and Education and Workforce Committee, and 6 other committees. This bill would repeal the Patient Protection and Affordable Care Act and the Health Care and Education Reconciliation Act of 2010, effective as of their enactment. Provisions of law amended by those Acts are restored.
On January 18, 2019, H.R. 692, the Pre-existing Conditions Protections Act of 2019 was introduced by Rep. Greg Walden (R-OR) and referred to the House Education and Labor and Energy and Commerce Committees, and one other committee. This bill sets forth amendments that would take effect in the case of the repeal of the Patient Protection and Affordable Care Act (PPACA). If the amendments take effect, the Public Health Service Act, the Employee Retirement Income Security Act of 1974 (ERISA), and Internal Revenue Code are revised to maintain PPACA consumer protections. Specifically, the bill would maintain (1) the requirement for health insurance to cover preexisting conditions; (2) the requirement for health insurers to accept every employer and every individual applying for coverage; (3) the prohibition against health insurers discriminating against individuals based on health status factors; (4) the prohibition against collecting genetic information in connection with issuing health insurance, and (5) the requirements for workplace wellness programs connected to health insurance.
On January 10, 2019, S. 80, the Jobs and Premium Protection Act was introduced by Sen. John Barrasso, MD (R-WY) referred to the Senate Finance Committee. This bill would repeal the annual fee on health insurance providers enacted by the ACA.
On January 10, 2019, H.R. 458, the Affordable Limited Health Coverage Act was introduced by Rep. Jeff Fortenberry (R-NE) and referred to the House Education and Labor and Energy and Commerce Committees, and one other committee. The bill would prohibit implementation of the revised definition of short-term, limited duration insurance, i.e., coverage must be less than three months in duration, including any period for which the policy may be renewed. This would permit such insurance to provide up to 12 months of coverage.
HSAs/Favorable Tax Treatment for Medical Costs
On January 3, 2019, S. 12, the Health Savings Act of 2019 was introduced by Sen. Marco Rubio (R-FL) and referred to the Senate Finance Committee. This bill would modify the requirements for health savings accounts (HSAs) to:
(1) rename high deductible health plans as HSA-qualified health plans; (2) allow spouses who have both attained age 55 to make catch-up contributions to the same HSA; (3) make Medicare Part A (hospital insurance benefits) beneficiaries eligible to participate in an HSA; (4) allow individuals eligible for hospital care or medical services under a program of the Indian Health Service or a tribal organization to participate in an HSA; (5) allow members of a health care sharing ministry to participate in an HSA; (6) allow individuals who receive primary care services in exchange for a fixed periodic fee or payment, or who receive health care benefits from an onsite medical clinic of an employer, to participate in an HSA; (7) include amounts paid for prescription and over-the-counter medicines or drugs as “qualified medical expenses” for which distributions from an HSA or other tax-preferred savings accounts may be used; (8) increase the limits on HSA contributions to match the sum of the annual deductible and out-of-pocket expenses permitted under a high deductible health plan; and allow HSA distributions to be used to purchase health insurance coverage.
The bill also would: (1) exempt HSAs from creditor claims in bankruptcy, and (2) reauthorize Medicaid health opportunity accounts. It would allow a medical care tax deduction for: (1) exercise equipment, physical fitness programs, and membership at a fitness facility; (2) nutritional and dietary supplements; and (3) periodic fees paid to a primary care physician and amounts paid for pre-paid primary care services.
On January 10, 2019, H.R. 457, the Health Savings Account Act was introduced by Rep. Jeff Fortenberry (R-NE) and referred to the House Ways and Means Committee. This bill modifies the requirements for health savings accounts (HSAs) to (1) increase the maximum contribution limits for HSAs to match the sum of the annual deductible and out-of-pocket expenses permitted under a high deductible health plan, (2) allow individuals who receive primary care services in exchange for a fixed periodic fee or payment to participate in an HSA, and (3) permit HSAs to be used for fitness center memberships.
The bill also allows a medical care tax deduction for periodic provider fees, including (1) periodic fees paid to a primary care physician for a defined set of medical services or the right to receive medical services on an as-needed basis; and (2) pre-paid primary care services designed to screen for, diagnose, cure, mitigate, treat, or prevent disease and promote wellness.
On January 3, 2019, H.R. 81 was introduced by Rep. Andy Biggs (R-AZ) and referred to the House Ways and Means Committee. This bill would allow an individual taxpayer a deduction from gross income for insurance premiums paid for the health care coverage of the taxpayer and the taxpayer’s spouse and dependents. The bill makes the deduction available whether or not the taxpayer itemizes other deductions.
On January 11, 2019, H.R. 519, the Tax Free Health Insurance Act of 2019 was introduced by Rep. Steve King and referred to the House Ways and Means Committee. This bill allows an individual taxpayer a deduction from gross income for insurance premiums paid for the health care coverage of the taxpayer and the taxpayer’s spouse and dependents. The bill makes the deduction available whether or not the taxpayer itemizes other deductions.
On January 10, 2019, S. 110, the Medical Expense Savings Act was introduced by Sen. Susan Collins (R-ME) and referred to the Senate Finance Committee. This bill would make permanent the reduction in the adjusted gross income threshold that must be exceeded before a taxpayer is allowed to claim an itemized tax deduction for medical expenses. That is, in 2017, the threshold was temporarily reduced from 10% to 7.5% for 2017 and 2018. This bill makes the 7.5% threshold permanent.
On January 10, 2019, S. 102, Prescription Drug Price Relief Act of 2019, was introduced by Sen. Bernie Sanders (I-VT) and referred to the Senate Health, Education, Labor, and Pensions Committee. This bill would establish a series of oversight and disclosure requirements relating to the prices of brand-name drugs.
The bill would require the Department of Health and Human Services (HHS) to review at least annually all brand-name drugs for excessive pricing; HHS must also review prices upon petition. If any such drugs are found to be excessively priced, HHS must (1) void any government-granted exclusivity; (2) issue open, nonexclusive licenses for the drugs; and (3) expedite the review of corresponding applications for generic drugs and biosimilar biological products. HHS must also create a public database with its determinations for each drug.
Under the bill, a price is considered excessive if the domestic average manufacturing price exceeds the median price for the drug in Canada, the United Kingdom, Germany, France, and Japan. If a price does not meet this criteria, or if pricing information is unavailable in at least three of the aforementioned countries, the price is still considered excessive if it is higher than reasonable in light of specified factors, including cost, revenue, and the size of the affected patient population.
The bill also requires drug manufacturers to report specified financial information for brand-name drugs, including research and advertising expenditures.
On January 10, 2019, S. 73, the End Taxpayer Subsidies for Drug Ads Act was introduced by Sen. Jeanne Shaheen (D-NH) and referred to the Senate Finance Committee. This bill would prohibit tax deductions for expenses relating to direct-to-consumer advertising of prescription drugs. “Direct-to-consumer advertising” is any dissemination, by or on behalf of a sponsor of a prescription drug product, of an advertisement that is (1) in regard to the drug product, and (2) primarily targeted to the general public.
On January 9, 2019, S. 62, the Empowering Medicare Seniors to Negotiate Drug Prices Act of 2019 was introduced by Sen. Amy Klobuchar (D-MN) and referred to the Senate Finance Committee. This bill would allow the Centers for Medicare & Medicaid Services to (1) negotiate drug prices under the Medicare prescription drug benefit, and (2) institute a price structure for the reimbursement of drugs covered under the benefit.
On January 8, 2019, H.R. 275, the Medicare Prescription Drug Price Negotiation Act of 2019 was introduced by Rep. Peter Welch (D-VT) and referred to the House Energy and Commerce and Ways and Means Committees. This bill would require the Centers for Medicare & Medicaid Services (CMS) to negotiate with pharmaceutical companies regarding prices for drugs covered under the Medicare prescription drug benefit. Current law prohibits the CMS from doing so.
On January 11, 2019, H.R. 520, the Protecting Life Until Natural Death Act was introduced by Rep. Steve King (R-IA) and referred to the House Energy and Commerce and Ways and Means Committees. The bill would exclude coverage of advance care planning services under the Medicare program.
On January 4, 2019, H.R. 259, the Medicaid Extenders Act of 2019 was introduced by Rep. Frank Pallone (D-NJ) and signed into law on January 24, 2019. This law alters several Medicaid programs and funding mechanisms.
(Sec. 2) The law makes appropriations for FY2019 for, and otherwise revises the Money Follows the Person Rebalancing Demonstration Program. (Under this program, the Centers for Medicare & Medicaid Services must award grants to state Medicaid programs to assist states in increasing the use of home and community care for long-term care and decreasing the use of institutional care.)
(Sec. 3) The law temporarily extends the applicability of Medicaid eligibility criteria that protect against spousal impoverishment for recipients of home and community-based services.
(Sec. 4) The law reduces the federal medical assistance percentage (i.e., federal matching rate) for states that have not implemented asset-verification programs for determining Medicaid eligibility.
(Sec. 5) The law reduces funding available to the Medicaid Improvement Fund beginning in FY2021.
On January 3, 2019, S. 22, the Medicare Dental Benefit Act of 2019 was introduced by Sen. Benjamin Cardin (D-MD) and referred to the Senate Finance Committee. The bill would amend the Medicare program to provide coverage for most dental services. “Dental and oral health services” means services (as defined by the Secretary) that are necessary to prevent disease and promote oral health, restore oral structures to health and function, and treat emergency conditions, including (1) routine diagnostic and preventive care such as dental cleanings, exams, and x-rays; (2) basic dental services such as fillings and extractions; (3) major dental services such as root canals, crowns, and dentures; (4) emergency dental care; and (5) other necessary services related to dental and oral health (as defined by the Secretary).
On January 3, 2019, H.R. 96 was introduced by Rep. Julia Brownley (D-CA) and referred to the House Committee on Veterans’ Affairs Committee. This bill would require Veterans Affairs to furnish dental care in the same manner as any other medical service.
More Federal Standards
On January 15, 2019, S. 116, the Modernizing Obstetric Medicine Standards Act of 2019 (MOMS Act) was introduced by Sen. Kirsten Gillibrand (D-NY) and referred to the Senate Health, Education, Labor, and Pensions Committee. The bill would have HHS establish pregnancy and postpartum safety and monitoring practices and maternal mortality and morbidity prevention “Maternal safety bundles.”
The best practices would include the following: (i) Obstetric hemorrhage; (ii) Maternal mental, behavioral, and emotional health; (iii) Maternal venous and thromboembolism; (iv) Severe hypertension in pregnancy, including preeclampsia; (v) Obstetric care for women with substance abuse disorder; (vi) Postpartum care basics for maternal safety; (vii) Reduction of racial and ethnic disparities in maternity care; (viii) Safe reduction of primary cesarean birth; (ix) Severe maternal morbidity review; (x) Support after a severe maternal morbidity event; (xi) Ways to empower and listen to women before, during, and after childbirth to ensure better communication between patients and health care providers; and (xii) Other leading causes of maternal mortality and morbidity, including infection or sepsis and cardiomyopathy.