Legislative Update – 3/1/2018


Marilyn Singleton, MD, JD reviews the latest health policy news and proposals from Capitol Hill. 

Twenty States Sue Federal Government to Repeal the ACA

On February 26, 2018, a coalition of 20 U.S. states sued the federal government arguing that the Affordable Care Act was no longer constitutional after the repeal last year of its requirement that people have health insurance or pay a fine. The Supreme Court ruled that the ACA was constitutional because the mandate was a tax. Because the individual mandate was eliminated in December 2017, there is no legitimate basis for the law. Texas Attorney General Ken Paxton and Wisconsin Attorney General Brad Schimel led the lawsuit which was filed in Texas. Other than Maine and Mississippi, all of the states in the suit are represented by GOP attorneys general. Other states include Alabama, Arkansas, Arizona, Florida, Georgia, Indiana, Kansas, Louisiana, Missouri, Nebraska, North Dakota, South Carolina, South Dakota, Tennessee, Utah and West Virginia.

Single Payer is on the March

On October 17, 2017, S. 1970, the Medicare-X Choice Act of 2017 was introduced by Sens. Michael Bennet (D-CO) and Tim Kaine (D-VA) and referred to the Senate Finance Committee. Its sister bill, HR 4094 was introduced by Rep. Brian Higgins (D-NY). This bill creates the Medicare Exchange health plan, which the Centers for Medicare & Medicaid Services (CMS) must offer in certain individual health insurance exchanges in 2020 and offer in all individual health insurance exchanges by 2023.

Any individual who is a resident of a state where the plan is offered and who is not eligible for Medicare benefits may enroll in the plan. CMS must offer the plan in the small group market in all areas for 2024.

The plan must meet the same requirements, including essential health benefits, as health insurance exchange plans under the Patient Protection and Affordable Care Act.

Health care providers enrolled under Medicare or under a state Medicaid plan shall also be participating providers for the plan and shall be reimbursed at Medicare rates.

The bill eliminates the restriction on the Department of Health and Human Services to negotiate prescription drug prices for Medicare.

Full text (Senate): https://www.govtrack.us/congress/bills/115/s1970/text
Full text (House) https://www.govtrack.us/congress/bills/115/hr4094/text

More ACA fixes

On October 26, 2017, S. 2021, the Health Care Choice Act of 2017 was introduced by Sen. Ted Cruz (R-TX) and referred to the Senate Finance Committee. The same bill died in the 2015-2016 Congress. The bill:

  • Repeals the health insurance and health coverage expansion requirements of the Patient Protection and Affordable Care Act and related requirements of the Health Care and Education Reconciliation Act of 2010.
  • Restores provisions of law amended or repealed by those provisions.
  • Amends the Public Health Service Act to provide that the laws of the state designated by a health insurance issuer (primary state) apply to individual health insurance coverage offered by that issuer in the primary state and in any other state (secondary state), but only if the coverage and issuer comply with the conditions of this Act.
  • Exempts issuers from any secondary state’s laws that would prohibit or regulate the operation of the issuer in that state, subject to certain restrictions imposed by that state.
  • Gives sole jurisdiction to the primary state to enforce the primary state’s covered laws in the primary state and any secondary state.
  • Requires the Government Accountability Office to study the effect of this Act on specified health insurance issues.

On October 17, 2017, HR 4128, the Health Care Choice and Affordability Act, was introduced by Rep. Michelle Grisham (D-NM) and referred to the House Energy and Commerce and Ways and Means Committees. The bill would allow states with ACA Exchanges with low insurer participation to offer a Medicaid buy-in plan.  The premium rates would be set at a level to produce revenue equal to the sum of the costs of health benefits provided by the plan; plus 10 percent of the administrative costs related to operating the plan.

Full text: https://www.govtrack.us/congress/bills/115/hr4128/text

Inching Closer to Single Payer

On October 25, 2017, HR 4129, the State Public Option Act, was introduced by Rep. Ben Lujan (D-NM) and referred to the House Energy and Commerce and Ways and Means Committees. This bill would allow any state to offer a Medicaid buy-in plan, i.e., a “public option.”

Full text: https://www.govtrack.us/congress/bills/115/hr4129/text

The “Continuing Resolution” Delays Obamacare Taxes

On Jan. 22, 2018, Congress passed and President Donald Trump signed into law HR 195, the Continuing Resolution (CR) which provides for another two-year delay until 2022 of the Affordable Care Act’s 40 percent excise tax on high-value health care plans (“Cadillac Tax). It also suspended Obamacare’s medical device tax for two years. The CR  also suspended the tax on health insurers for one year. The tax is in effect for 2018, but suspended for 2019. The tax had previously been suspended for 2017. The health insurer tax was not suspended for 2018 because insurance rates for 2018 already include the tax, and to suspend the tax now would be a windfall for insurers unless they were required to refund the tax to policyholders. Finally, the law extended the Children’s Health Insurance Program (CHIP) for six years.

Full text: https://www.govtrack.us/congress/bills/115/hr195/text

The “Bipartisan Budget Act of 2018” (HR 1892) was signed into law on February 9. In addition to lifting spending caps and keeping the federal government funded through March 23, it contained a number of health policy provisions.

MACRA patches were included, which are welcome, but far from fix an unfixable policy.

The AMA lists the changes as:

  • Medicare Part B drug costs will be excluded from payment adjustments under MACRA’s Merit-based Incentive Payment System (MIPS) and from low-volume threshold determinations.
  • Greater flexibility will be provided for an additional three years in scoring and in the weight given to the Cost component of MIPS. (It is 10% this year and statute dictates it be 30% after 2018. The change today gives the Secretary discretion to keep it under 30% moving forward).
  • The Centers for Medicare and Medicaid Services will have more flexibility in setting overall performance thresholds for three more years. (Instead of requiring that either the median or mean be used to determine the threshold. This change benefits smaller practices to some degree).
  • The Physician Focused Payment Model Technical Advisory Committee’s authority has been clarified so that it can provide more helpful feedback on proposed alternative payment models.

Source: https://wire.ama-assn.org/practice-management/chip-extension-ipab-repeal-part-federal-budget-deal

Other parts of the bill that caught our attention.

1) Medicare fines and prison sentences are being increased by the bill.

2) The bill contains provisions widening scope-of-practice:



3) A provision permitting ACOs to pay patients $20 per visit in order to get them to come to their appointment. (At the same time the bill failed to include a simple provision allowing patients to use their HSA for DPC memberships.)

A couple more noted by Politico Pulse:

4) A 0.25 percent drop in the tiny Medicare pay raise doctors were scheduled to receive next year under the 2015 MACRA law. The minor change translates to just under $1.9 billion less in Medicare reimbursement over a decade, according to CBO.

5) A two-year extension of Medicare’s sequester, which gives a 2 percent, across-the-board cut to all checks out of Medicare’s doors. It was set to expire after 2025, but got renewed again as an easy source of money for lawmakers to reach for. The Center on Budget and Policy Priorities estimates a two-year extension translates to roughly $40 billion.

Full text of HR 1892 as enacted: https://www.congress.gov/115/bills/hr1892/BILLS-115hr1892enr.pdf

Increasing Subsidy Eligibility

On June 15, 2017, the House passed HR 2579, the Broader Options for Americans Act. On February 6, 2018 the bill was placed on the Senate calendar. The bill amends the Internal Revenue Code to allow the premium assistance tax credit to be used for unsubsidized COBRA continuation health coverage. (Under the Consolidated Omnibus Budget Reconciliation Act of 1985 [COBRA], an individual may continue to receive coverage under an employer-sponsored health plan after an event that would otherwise end coverage, such as a termination of employment. This bill applies to COBRA continuation coverage if the premiums are solely the obligation of the taxpayer.)

“COBRA continuation coverage” includes continuation coverage provided under: the Internal Revenue Code, the Employment Retirement Income Security Act of 1974 (ERISA), the Public Health Service Act, or the Federal Employees Health Benefits Program; a state law or program that provides comparable coverage; or a church plan that provides comparable coverage. It does not include coverage under a health flexible spending arrangement. For the coverage to qualify for the tax credit, the plan administrator of the group health plan must certify that the COBRA continuation coverage meets the requirements for qualified health plans.

The bill is contingent on the enactment of the American Health Care Act of 2017 which repealed and replaced the ACA (passed House May 4, 2017) and applies (if at all) after December 31, 2019.

Full text: https://www.govtrack.us/congress/bills/115/hr2579/text
Full text (American Health Care Act) https://www.govtrack.us/congress/bills/115/hr1628/text

More Flexibility with HSAs

On February 8, 2018, S. 2410, the Chronic Disease Management Act of 2018 was introduced by Sen. John Thune (R-SD) and referred to the Senate Finance Committee. The sister bill was introduced by Rep. Diane Black (R-TN) and referred to the House Ways and Means Committee. This bill amends the Internal Revenue Code, with respect to health savings accounts (HSAs), to allow the high deductible health plans required for an HSA to provide care for chronic conditions with no deductible. The bill covers care and prescription medicines related to the treatment of medically complex chronic conditions which: (1) are substantially disabling or life threatening, (2) have a high risk of hospitalization or other significant adverse health outcomes, and (3) require specialized delivery systems across domains of care.

Full text (Senate): https://www.govtrack.us/congress/bills/115/s2410/text
Full text (House): https://www.govtrack.us/congress/bills/115/hr4978/text

A Victory for Medical Privacy

On January 23, 2018, the U.S. District Court of Washington DC granted a motion by AARP to vacate the EEOC’s current wellness regulations which allow companies to charge employees who decline to participate in wellness questionnaires and exams with penalties. AARP sued the EEOC in October 2016 on the grounds that EEOC’s wellness rules were coercive, making workers pay much more for health insurance if they decided to protect private medical information. The resulting decision is a win for workers seeking to protect their medical and genetic information but also creates uncertainty within the compliance landscape for employer wellness programs.

The main types of employer wellness program features impacted by the court’s ruling are:

  • Biometric screenings (and any other medical examinations) for employees and spouses;
  • Disability-related inquiries directed at employees (which might include some questions on an HRA, depending on how questions are worded);
  • Family medical history questions (HRA questions that ask about the manifestation of disease or disorder in an employee’s family member and/or HRA questions that ask an employee’s spouse about his or her own manifestations of disease or disorder); and

Any other features that involve genetic information (i.e., an employee’s genetic tests, the genetic tests of the employee’s family members, biometric screening results of the employee’s spouse).

For more on the decision: https://theysaidwhat.net/2017/12/26/qa-about-landmark-aarp-v-eeoc-court-decision-on-wellness/

More Transparency to Government Privacy Invasions

On December 11, 2017, HR 4613, the Ensuring Patient Access to Healthcare Records Act of 2017 was introduced by Rep. Cathy McMorris Rodgers (R-WA) and referred to the House Energy and Commerce and Ways and Means Committees. The bill amends the Health Information Technology for Economic and Clinical Health Act to require the Department of Health and Human Services to develop and update policies that enable certain health-care clearinghouses, plans, and providers to: (1) provide patients with access to information related to their care; (2) develop patient-engagement tools, reports, analyses, and presentations that may demonstrate benefit to patients and health-plan enrollees; and (3) promote transparency regarding the use and disclosure of health information by health-care clearinghouses.

Full text: https://www.govtrack.us/congress/bills/115/hr4613/text

More Authority for Midlevels

On January 17, 2018, S. 2317, the Addiction Treatment Access Improvement Act of 2018 was introduced by Sen. Edward Markey (D-MA) and referred to the Senate Health, Education, Labor, and Pensions Committee. The bill would allow additional types of midlevel providers to provide medication assisted opiate treatment.  Clinical nurse specialists, certified registered nurse anesthetists, and certified nurse midwifes would gain this authority, joining nurse practitioners and physician assistants, in the list of midlevels authorized to prescribe these treatments.

Full text: https://www.govtrack.us/congress/bills/115/s2317/text

A Step Toward Decreasing Drug Shortages

On October 25, 2017, HR 4117, the Competitive Deals Resulting in Unleashed Generics and Savings Act of 2017 or the Competitive DRUGS Act of 2017 was introduced by Rep. Lloyd Doggett (D-TX) and referred to the House Energy and Commerce and Ways and Means Committees. The bill would (1) clawback research and development tax benefits for manufacturers engaging in pay-for-delay and (2) disallow tax deduction for civil penalties in connection with actions for unlawful compensation for delay.

Full text: https://www.govtrack.us/congress/bills/115/hr4117/text

Tinkering with the Merit-Based Incentive Payment System (MIPS)

On November 2, 2017, S. 2059, the EHR Regulatory Relief Act was introduced by Sen. John Thune (R-SD) and referred to the Senate Finance Committee. The bill would (1) provide for a 90-day period for determination of whether a MIPS eligible professional or eligible hospital is a meaningful EHR user and (2) remove the all-or-nothing approach to meaningful use, i.e., ensure flexibility in assessing the performance of MIPS eligible professionals.

Full text: https://www.govtrack.us/congress/bills/115/s2059/text

Enabling MACRA

On November 1, 2017, HR 4206, the Medicare Care Coordination Improvement Act of 2017 was introduced by Rep. Larry Bucshon, MD (R-IN) and referred to the House Energy and Commerce and Ways and Means Committees. The sister bill, S. 2051 in the Senate was introduced by Sen. Rob Portman (R-OH). The bill would modernize the limitations on physician self-referral to promote participation in alternative payment models (APMs) under MACRA). The changes would track those made to accommodate accountable care organizations (ACOs). The bill also allows administrative authority to provide exceptions to physician ownership and compensation arrangement prohibitions in furtherance of APMs.

Full text (House): https://www.govtrack.us/congress/bills/115/hr4206/text
Full text (Senate): https://www.govtrack.us/congress/bills/115/s2051/text