Legislative Update – October 25, 2017

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The latest health care legislation on Capitol Hill, reviewed by Marilyn Singelton, MD, JD.

Two Temporary Health Care Measures

On October 18, 2017, Senators Lamar Alexander (R-TN) and Patty Murray (D-WA) release their draft of the Health Care Stabilization Act of 2017.

The bill’s purpose is to stabilize individual market premiums for the 2018 and 2019 plan years and provide meaningful State flexibility. The proposed legislation would provide:

  • Funding For Cost-Sharing Subsidies: The key component to the deal is stable funding for the cost-sharing reduction (CSR) subsidies. These subsidies lower out-of-pocket costs for individuals enrolled in the Affordable Care Act exchanges with incomes between 100 and 250 percent of the federal poverty level. There is concern about insurers’ “double-dipping” by receiving CSR funds and keeping the rate increases is addressed and many insurers may be required to pay rebates to individuals and the federal government related to premiums in the nongroup health insurance market for 2018.
  • Changes To Section 1332 Waiver Rules: The criteria for the waiver process under the ACA which allows states to alter some of the law’s individual market coverage parameters. The bill changes the requirement that state proposals be “as affordable as” ACA coverage would be; it requires only that they have “comparable affordability.” No changes could be made that would undermine protections for people with preexisting conditions or eliminate essential health benefits.
  • Restored Funding For Outreach And Enrollment: The bill would provide up to $106 million to restore consumer outreach efforts. These funds would initially be made available to states. But if a state didn’t use its allotment, the money would be returned to the Federal government.
  • Expanded Access To “Copper” (Catastrophic) Plans: These catastrophic insurance plans are currently only available to individuals under the age of 30 or those who qualify for an economic hardship waiver. The bill would allow anyone to buy a Copper plan, regardless of age or income level. They would still not be eligible for tax credit subsidies but their enrollees would be treated as in the same risk pool as all others in the Exchanges, presumably adding healthier persons to the mix. Increasing options to consumers sounds beneficial. But with ACA it’s not always that simple. In addition to covering catastrophic expenses, Section 1302(e) of ACA requires Copper plans to cover at least 3 primary care visits. Alexander-Murray exacerbates this flaw which not only drives up the costs of the plans but places primary care under control of third party payers. DPC patients and physicians are especially harmed by this problematic clause.
  • Authorization Of Funding For State Reinsurance Program
  • Offering Health Plans in More than One State

Section 1333 of the ACA allowed compacts between states to sale health insurance across state lines. However, no regulations have been issued. This bill mandates that HHS in consultation with the National Association of Insurance Commissioners issue these regulations.

On net, the CBO and the staff of the Joint Committee on Taxation (JCT) estimate that implementing the legislation would reduce the deficit by $3.8 billion over the 2018-2027 period relative to CBO’s baseline. The agencies estimate that the legislation would not substantially change the number of people with health insurance coverage, on net, compared with that baseline projection. Enacting the legislation would affect direct spending and revenues; therefore, pay-as-you-go procedures apply.

Under the Obama Administration, the Treasury Department made CSR payments without congressional approval. The Trump Administration announced it would no longer send this money to insurance companies without the constitutionally required appropriation from Congress and a district judge has struck down an emergency motion filed by state AGs to compel payments. To remedy this, on October 24, 2018, House Ways and Means Committee Chairman Kevin Brady (R-Texas) and Senate Finance Committee Chairman Orrin Hatch (R-Utah) announced a bicameral agreement to pair structural ACA reforms with a temporary two-year funding extension for the health law’s cost-sharing reduction (CSR) program.

The proposed legislation would provide:

  • Funding for CSRs through 2019 with protections against “double-dipping” by insurers.
  • Relief from the individual mandate from 2017-2021.
  • Relief from the employer mandate from 2015- 2017.
  • Expansion of HSAs to increase the maximum contribution limit.

Full legislative language will be released in coming days.

More ACA Fixes

On October 17, 2017, S. 1976, the Increasing Access to Care Act was introduced by Sen. Tim Scott (R-SC) and referred to the Senate Finance Committee. The bill would allow all individuals purchasing health insurance in the individual market the option to purchase a lower premium copper plan.

Full text: https://www.govtrack.us/congress/bills/115/s1976/text.

On October 18, 2017, S. 1977, the Seniors Tax Hike Prevention Act of 2017 was introduced by Sen. Sherrod Brown (D-OH) and referred to the Senate Finance Committee. The bill would amend the Internal Revenue Code of 1986 to extend the 7.5 percent threshold for the medical expense deduction for individuals age 65 or older.

Full text: https://www.govtrack.us/congress/bills/115/s1977/text.

 On October 17, 2017, S. 1967, the Mandate Relief Act of 2017 was introduced by Sen. Tom Cotton (R-AR) and referred to the Senate Finance Committee. To amend the Internal Revenue Code of 1986 to provide additional exemptions to the individual mandate. Others eligible for the exemption include (1) Individuals with household incomes below the national median for the most recent calendar year; (2) individuals with excessive premium increases, i.e., 10 percent greater than the previous year; (3) individuals in areas with fewer than 2 issuers offering plans on an exchange.

Full text: https://www.govtrack.us/congress/bills/115/s1967/text.

Non-Physician Clinicians Must be Properly Identified

On October 3, 2017, H.R. 3928, the Truth in Healthcare Marketing Act of 2017 was introduced by Rep. Larry Bucshon, MD (R- IN) and referred to the House Energy and Commerce Committee. This same law died in committee in 2015. Noting that patients are often confused by the type and degree of training of health care professionals, the bill would ensure that patients receive accurate health care information by prohibiting misleading and deceptive advertising or representation in the provision of health care services, to require the identification of the license of health care. A violation shall be treated as an unfair or deceptive act or practice prescribed under Federal Trade Commission Act.

Full text: https://www.govtrack.us/congress/bills/115/hr3928/text.

Methadone and Medicare

On October 23, 2017, H.R. 4097, the Medicare Beneficiary Opioid Addiction Treatment Act was introduced by Rep. Richard Neal (D-MA) and referred to the House Energy and Commerce and Ways and Means Committees. The bill would provide coverage for methadone for Medicare recipients.

Full text: https://www.govtrack.us/congress/bills/115/hr4097/text.

Another Medicare-for-All & a Medicaid-for-All Proposal

On October 17, 2017, S. 1970, the Medicare-X Choice Act of 2017 was introduced by Sen. Michael Bennet (D-CO) and referred to the Senate Finance Committee. The sister House bill, H.R. 4094 was introduced by Rep. Brian Higgins (D-NY) and referred to the House Energy and Commerce and Ways and Means Committees. The bill would create a “low-cost” Medicare Exchange health plan. The plan would be available in the individual market only until 2023, and thereafter available in the group market.  There would be silver and gold level plans.

There would be $1,000,000,000 directed to the “Plan Reserve Fund” for fiscal year 2018. The bill would have no effect on Medicare benefits or Medicare Trust Funds. HHS would establish premiums for the health plan that cover the full actuarial cost of offering such plan, including the administrative costs. Such premiums shall vary geographically and between the small group market and the individual market in accordance with differences in the cost of providing such coverage. Any unused over premiums would finance beneficiary costs in subsequent years.

All persons would be in a single risk pool.

Medicare reimbursement rates would apply, with a 25% increase for rural services.

A health care provider that is enrolled under the Medicare program or is a participating provider under a State Medicaid plan shall be a participating provider under the health plan. However, there will be an opt-out process.

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

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

On October 25, 2017, the State Public Option Act was announced by Senator Brian Schatz (D-Hawai‘i) and U.S. Representative Ben Ray Luján (D-N.M.). This act would create a “Medicaid-based public health care option on the insurance marketplace” allowing anyone, regardless of income, to buy into a state’s Medicaid program. A bill number has not been assigned as of this update.

Full draft text:
https://www.schatz.senate.gov/download/state-public-option-act

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