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News Items, by Subject

Health plans - policy

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[Opinion] Forget Washington -- Here's How States Can Improve Health Care
"While the State Relief and Empowerment Waivers focus on providing states with additional flexibility and relief from Obamacare, the administration has also encouraged states to request reforms to their Medicaid programs through the Section 1115 waiver demonstrations.... Some have already seized the opportunity, but many states have not and more can be done. Moreover, states should oppose initiatives to roll back or undermine efforts that bring much-needed reforms and changes to these programs." (The Heritage Foundation)
[Opinion] Is the Drug Industry an Existential Threat to the Private Health Insurance Business?
"Because of the impact health insurance costs are having on take home income, we are at risk that the historical attractiveness employees and their families have had for employer-based health insurance will be lost. If the health insurance industry loses the support of employer-plan participants it will have lost the firewall that has made voters reluctant to support government-run health care.... [T]he primary villain in the multi-year erosion of the value of the employer-provided health benefit, and private insurance generally, has been drug costs." (Bob Laszewski's Health Care Policy and Marketplace Review)
Is the New Association Health Plan (AHP) Rule Providing New Opportunities for Employers?
"The range of responses and feasibility to this new rule hinges on the state, the insurance carriers, and each association itself. The summary [in this article] shows the opportunities and challenges for the various stakeholders[.]" (OneDigital Health and Benefits)
Two District Courts Block Trump Administration's Final ACA Contraceptives Rules
"Although the two district court injunctions put a hold on the Trump Administration's final regulations for the time being, they will not be the final word on the exemptions. Both orders have already been appealed -- to the Ninth and Third Circuits, respectively -- so entities that were planning to take advantage of the expanded exemptions must wait and see how the litigation plays out in the courts." (Thomson Reuters Practical Law)
Appeal in Texas v. Azar Stayed Due to Government Shutdown
"In the Fifth Circuit, the DOJ's response to the House's motion to intervene was due on January 17, 2019. Citing the shutdown, the DOJ asked that the Fifth Circuit delay this deadline until 10 days after the shutdown has ended. It also asked for briefing on the merits of the appeal to be stayed until after the DOJ is funded again. The intervenor states and the House opposed the delay; the plaintiffs took no position. On January 11, the Fifth Circuit granted the DOJ's request." [Texas v. U.S., No. 18-167 (5th Cir. order granting stay of proceedings, Jan. 11, 2019)] (Katie Keith, in Health Affairs)
Judge Freezes Trump Administration Contraception Rule
"U.S. District Judge Haywood Gilliam, Jr. ruled the policy would cause harm to the Democratic states suing over the rules, and he issued an order staying the rules from going into effect while the lawsuit proceeds. His temporary block is limited to just the 13 states plus the District of Columbia involved in the lawsuit. However it's possible that a court in Pennsylvania, considering a similar request for an injunction, could issue a broader national order." [California v. Azar, No. 17-5783 (N.D. Cal. Jan. 13, 2019)] (Politico)
Democrats Roll Out Big Health Care Proposals in the States
"The Democratic proposals fall short of providing universal health care, a goal of many Democrats but also an elusive one because of its cost. In recent years, California, Colorado and Vermont have all considered and then abandoned attempts to create state-run health care systems. Still, many Democrats are eager to take steps that get them closer to that." (ABC News)
Democrats Question Trump Administration's Use of ACA Marketplace User Fees
"As part of their inquiry, the Democrats are requesting a series of documents related to the Trump Administration's use of user fees collected, including: [1] The overall amount of user fees collected, as well as a detailed accounting of how these funds were spent in each year; [2] Detail on what capital investments have been made to improve the functioning of the Federal Marketplace in 2017 and 2018, as well as any plans for future investments; [3] A briefing on the Administration's outreach and enrollment expenditures for 2019 Marketplace plans." (Energy and Commerce Committee, U.S. House of Representatives)
Outlook 'Stable' for Health Insurers in 2019 Despite ACA Uncertainty
"A robust job market bolstering employer-sponsored plans, Baby Boomers transitioning to Medicare Advantage, and ACA exchanges attracting new payers are good signs for health plans in the coming year." (HealthLeaders Media)
New York City Launches $100 Million Universal Health Insurance Program
"New York City has launched a $100 million health insurance program to cover 600,000 uninsured residents, including those unable to afford coverage and those living in the United States illegally ... The NYC Care plan, which de Blasio said would be funded without tax increases, is an expansion of the city's existing MetroPlus plan that covers hospital bills for low-income residents. The new plan provides insurance for visits to doctors outside of hospitals." (Reuters)
Democrat States, DOJ Appeal Texas ACA Case to Fifth Circuit
"[T]he case is expected to live or die based on what the Fifth Circuit, and ultimately the Supreme Court, decide on the constitutionality of the mandate and severability. This likely makes the House's motion to intervene in the district court case largely symbolic ... In any event, this part of the lawsuit is stayed until after the appeal on the first claim and will not be at issue until at least 2020." (Katie Keith, in Health Affairs)
[Opinion] Why a 'Passive' Health Approach Can Produce the Most Action
"A $100 billion dollar health care package was proposed by congressional Republicans this past summer, and afterward endorsed by some Democrats. It aims to save money by encouraging you to make big life changes. But the package will probably fail to achieve its goals for a simple reason: scarcity. Chances are you don't have the time, money or bandwidth to follow through." (The New York Times; subscription may be required)
Texas v. U.S. ACA Decision Could Impact Employer-Sponsored Health Plans
"Given the District Court's decision to stay the ruling, it is unlikely that consumers, insurers or employers will see changes to the ACA in the short term. The entry of a final judgment on December 30 paves the way for reconsideration by the U.S. Court of Appeals for the Fifth Circuit. However, during the pendency of any appeals, the future of the ACA remains uncertain not only for the public, but also for employer-sponsored plans that are subject to the ACA's group health plan provisions." [Texas v. U.S., No. 18-167 (N.D. Tex. Dec. 14, 2018; order granting stay and partial final judgment filed Dec. 30, 2018)] (Eversheds Sutherland)
Prescription Drug Policy: The Year in Review, and the Year Ahead
"Democratic members of Congress, many of whom will now serve in leadership positions in the new Congress, have introduced a flood of bills on the topic of drug pricing.... All of these bills go beyond the comprehensive legislation already introduced by Democrats into both houses in 2017[.]" (Health Affairs)
Texas Ruling Invalidating ACA Is Appealed to the Fifth Circuit; U.S. House Moves to Intervene
"The plaintiffs -- Republican attorneys general from 19 states, the Governor of Maine, and two individual plaintiffs from Texas -- sought a declaration (in Count I of their amended complaint) that the ACA's individual mandate was no longer constitutional because it no longer triggers a tax.... [T]he U.S. House of Representatives, under Democratic control as of January 3, submitted a motion to intervene in the litigation -- as to the plaintiffs' claims other than Count I.... The House acknowledged, however, that it cannot intervene as to Count I, because the intervenor states' notice of appeal to the Fifth Circuit means the district court can no longer grant intervention concerning Count I." (Thomson Reuters Practical Law)
States Appeal ACA Ruling to Fifth Circuit
"A growing coalition of Democratic state attorneys general that stepped in to defend the [ACA] against a legal challenge filed an appeal Thursday ... Colorado is the 17th state to join the California-led coalition ... Nevada ... is expected to join the ... coalition with backing from the incoming Democratic governor ... Democrats elected as attorneys general in Michigan and Wisconsin could be limited in their ability to join the lawsuit, due to actions by Republican-controlled legislatures in each state." (HealthLeaders Media)
Taking the Pulse of New Association Health Plans
"States have reacted to the final rule in dramatically divergent ways. Some states believe that AHPs will make it finally possible for small employers to offer affordable healthcare options for their employees. Other states worry that AHPs will destabilize the individual insurance marketplace. They predict that healthy people will join AHPs because they are less expensive than other insurance options, and this shift will leave sicker people in a smaller pool with higher premiums." (Crowell & Moring LLP)
ACA Litigation Round-Up: CSRs, Risk Adjustment, AHPs, and Short-Term Plans
"January 2019 ... will bring at least two hearings over whether insurers are entitled to unpaid reimbursements for the cost-sharing reductions they are required to provide lower-income Marketplace enrollees under the ACA, as well as a hearing on the multi-state challenge to the Trump administration's rule on association health plans. The federal government will appeal a challenge to its risk adjustment methodology to the Tenth Circuit Court of Appeals, and it received a temporary stay in litigation over the final rule on short-term plans (where a hearing is currently scheduled for February)." (Katie Keith, in Health Affairs)
ACA Strike-Down: Salvaging the BPCIA via Severability
"Should appellate courts uphold Judge O'Connor's decision, the [Biologics Price Competition and Innovation Act (BPCIA)] may have to be reauthorized. Although there would be tremendous pressure for Congress to reenact the BPCIA because the BPCIA has the potential to create savings in the billions of dollars for Medicare alone, a second look at the BPCIA would almost certainly result in renewed debate regarding its more controversial aspects and lobbying efforts by industry and consumer protection groups alike." (Foley & Lardner LLP)
Court Grants Stay in ACA Case: Clears Way For Appeal, Keeps ACA In Place
"On December 30, 2018, Judge Reed O'Connor of the Northern District of Texas issued a stay and partial final judgment ... This will allow the parties to immediately appeal his recent decision to invalidate the entire [ACA] to the Fifth Circuit Court of Appeals. [The] ruling ensures that the provisions of the ACA remain fully in effect in all 50 states and DC." [Texas v. U.S., No. 18-167 (N.D. Tex. Dec. 14, 2018; order granting stay and partial final judgment filed Dec. 30, 2018)] (Katie Keith, in Health Affairs)
ERISA Implications for Firing a Whistleblower
"The Court held that the whistleblower's cooperation with the DOL was quintessential protected activity, and that defendants were liable because they arranged the vote by the full board of trustees that resulted in the whistleblower's termination, they influenced the vote by recommending the whistleblower's termination, and the trustee had the authority to remove other union trustees or have their positions with the union terminated." [Acosta v. Brain, No. 16-56529 (9th Cir. Dec. 4, 2018)] (Proskauer's ERISA Practice Center)
How the DOL is Changing Association Health Plans
"Owners can now join with other small business owners to get the same type of coverage offered by larger employers.... AHPs can be formed by companies that share common geography or that work in the same industry.... [C]overage can be offered nationwide or in a specific state, city, county, or metro area.... Sole proprietors and self-employed individuals and their families are now eligible ... Consumers still enjoy protection against discrimination for pre-existing conditions." (Hall Benefits Law)
Health Tech Predictions for 2019
"Wearables will track blood pressure ... A lot of new tech hits Medicare Advantage ... Amazon gets into health insurance ... Pharma companies flex their buying muscle ... Funding will flow into tech for mental health." (CNBC)
ACA Ruled Unconstitutional -- Now What for Employers?
"From an employer perspective, this case does not require or even provide opportunities for change as the ACA continues to be the law of the land as the case works its way through the system. As such, employers should continue its health coverage strategies per the ACA and comply with all if its requirements." (Findley)
ACA Defenders Push Again for Expedited Appeal
"On December 21, The Trump Administration and Republican AGs agreed that O'Connor's December 14 decision does not change the status quo of the ACA.... On December 26, the Democratic AGs reiterated their call for clarity in an expedited and certified ruling." [Texas v. U.S., No. 18-167 (N.D. Tex. Dec. 14, 2018)] (HealthLeaders Media)
All Parties in Texas v. Azar Ask for Appeal to Fifth Circuit
"On December 21, 2018, the plaintiffs in Texas v. Azar and the federal government asked Judge Reed O'Connor ... to allow for an immediate appeal to the Fifth Circuit Court of Appeals of his decision to invalidate the entire [ACA].... The federal government and intervenor states additionally encourage Judge O'Connor to confirm that his decision does nothing to disrupt the ACA and that the ACA remains the law of the land while the case proceeds." (Katie Keith, in Health Affairs)
States Renew Push to Block Contraception Coverage Rules
"The request by California and 13 other state attorneys general for a nationwide preliminary injunction halting the final exemption rules comes after the Ninth Circuit scaled back a previous nationwide block of interim rules to just the five states prosecuting the case at the time." [Calif. v. Azar, No. 17-5783 (N.D. Cal. motion for preliminary injunction filed Dec. 19, 2018)] (Courthouse News Service)
Issues Presented by Texas Ruling That the ACA Is Unconstitutional
"There are at least two aspects of this decision that present serious issues on appeal. First, the Supreme Court requires an injury in fact to sue in federal district court. If [the Tax Cuts and Jobs Act (TCJA)] removes any possibility of a tax penalty, where is the injury? Second, if the individual mandate is essential to the ACA, why did Congress choose to keep the ACA in place in 2017 when it enacted TCJA?" (Seyfarth Shaw LLP)
Democratic AGs Ready to Appeal Texas Decision: What Comes Next
"On December 18, 2018, Judge Reed O'Connor ... asked the plaintiffs and federal government to respond, by December 21, to whether [1] his December 14 decision should be stayed; [2] whether the court should enter partial final judgment based on this decision; and [3] whether the court should certify the decision for immediate appeal to the Fifth Circuit Court of Appeals. All parties, including the intervenor states, must also propose how to treat the remaining four claims still at issue in the lawsuit in light of the states' motion. The intervenor states have until December 26 to file their response." [Texas v. U.S., No. 18-167 (N.D. Tex. Dec. 14, 2018; order to expedite briefing, Dec. 18, 2018)] (Katie Keith, in Health Affairs)
What Does the Recent Texas Court Decision Mean for the US Health Insurance Market and Employers?
"This decision, if ultimately upheld through the appeals process, would eliminate not only the Marketplaces, Medicaid expansion, premium subsidies, employer mandate, and other provisions governing individual insurance and employer-sponsored health plans, but also provisions that created the Center for Medicare and Medicaid Innovation, that apply the Mental Health Parity and Addiction Equity Act to individual and small group plans, that close the Medicare Part D donut hole, and that created an approvals process for biosimilar drugs, among numerous other provisions." [Texas v. U.S., No. 18-167 (N.D. Tex. Dec. 14, 2018)] (Epstein Becker Green)
Possible Steep Consequences for U.S. Pharmaceutical and Biologics Industries from ACA Decision
"[T]he ruling could undo the entire U.S. biosimilars industry, because without the ACA, there is no statutory framework for biosimilar drug approval. Second, Judge O'Connor's opinion could potentially leave millions of patients without prescription drug insurance coverage, hurting both the patients themselves as well as the pharmaceutical industry's bottom line. The good news is that while the ACA has been declared unconstitutional, Judge O'Connor did not issue an injunction, so the act remains in force -- at least for now." [Texas v. U.S., No. 18-167 (N.D. Tex. Dec. 14, 2018)] (Schiff Hardin)
[Opinion] A Path to Incremental Health Care Reform: Improving Affordability, Expanding Coverage, and Containing Costs
"This analysis focuses on improving the current system through incremental steps that would maintain the structure of the ACA but increase insurance coverage, enhance affordability, and contain costs." (Urban Institute)
Democratic AGs Ready to Appeal Texas Decision: What Comes Next
"On December 17, 2018, Democratic attorneys general -- led by California Attorney General Xavier Becerra -- urged Judge Reed O'Connor of the Northern District of Texas to allow for an immediate appeal of his decision in Texas v. Azar to the Fifth Circuit Court of Appeals. The attorneys general represent states that had intervened in the lawsuit to defend the [ACA]; they ask Judge O'Connor to [1] confirm that the ACA's protections remain fully in effect nationwide and [2] allow for a prompt appeal to the Fifth Circuit. The states ask for a ruling on these requests by Friday, December 21, 2018, to avoid disruption in 2019 and to quickly resolve these critical legal questions." (Katie Keith, in Health Affairs)
District Court Declares Entire ACA Unconstitutional: What That Could Mean for Employers and Plan Sponsors
"No employer shared responsibility.... [I]nvalidation of the ACA's prohibition on preexisting condition exclusions would resurrect the HIPAA portability rules in place prior to the ACA.... Plans would be given greater flexibility to apply cost-sharing on participants.... Employers and plan sponsors would no longer be required to extend health coverage to dependent children until age 26.... [P]lans would not need to distribute summaries of benefits and coverage.... [The] tax on high-cost health care (the so-called 'Cadillac Tax') would finally be invalidated[.]" [Texas v. U.S., No. 18-167 (N.D. Tex. Dec. 14, 2018)] (Proskauer's ERISA Practice Center)
What Just Happened to the ACA and What Happens Now?
"Because Judge Reed O'Connor did not issue an injunction after ruling the ACA unconstitutional, supporters of the law cannot file immediately for an appeal. The process will be more complicated.... [C]onservative legal scholars likely might agree with the judge that the mandate to have coverage cannot stand without the penalty -- based on Chief Justice John Roberts' landmark ruling in the first challenge to the law ... Although the issue will play out in the courts, Congress will face pressure on how to handle the decision." [Texas v. U.S., No. 18-167 (N.D. Tex. Dec. 14, 2018)] (Kaiser Health News)
Federal Judge Strikes Down Entire ACA; Law Remains In Effect
"Judge O'Connor concludes that, since Congress has eliminated the fine for not complying with the individual mandate, the mandate is no longer permissible under Congress's taxing power and is thus unconstitutional. Because the individual mandate is 'essential' to and inseverable from the ACA, the judge declares, the entire law is invalid. Judge O'Connor ... does not enjoin the ACA. This means that the law's provisions remain in effect in all 50 states and DC." [Texas v. U.S., No. 18-167 (N.D. Tex. Dec. 14, 2018)] (Katie Keith, in Health Affairs)
Texas District Court Rules Individual Mandate is Unconstitutional; White House States the Affordable Care Act Remains the Law of the Land
"[T]he District Court ruled that the Individual Mandate was inseverable from the rest of the ACA so the District Court struck down the entire ACA. Subsequently, and most importantly for purposes of employer actions moving forward, the White House has stated that the ACA will remain the law of the land while the District Court decision is reviewed by the United States Court of Appeals for the Fifth Circuit and, then most likely, the Supreme Court of the United States.... [T]he District Court in Texas decided not to grant injunctive relief ... [which] could have invalidated the entire ACA in all 50 States immediately[.]" [Texas v. U.S., No. 18-167 (N.D. Tex. Dec. 14, 2018)] (Accord)
Texas District Court: Repeal of Penalty Renders Individual Mandate Unconstitutional -- Entire ACA Ruled Invalid (PDF)
55 pages. "Plaintiffs allege that, following passage of the Tax Cuts and Jobs Act of 2017 (TCJA), the Individual Mandate in the [ACA] is unconstitutional. They say it is no longer fairly readable as an exercise of Congress's Tax Power.... The Supreme Court's reasoning in [NFIB v. Sebelius] ... compels the conclusion that the Individual Mandate may no longer be upheld under the Tax Power. And because the Individual Mandate continues to mandate the purchase of health insurance, it remains unsustainable under the Interstate Commerce Clause -- as the Supreme Court already held....

"Congress stated many times unequivocally -- through enacted text signed by the President -- that the Individual Mandate is 'essential' to the ACA.... All nine Justices to review the ACA acknowledged this text and Congress's manifest intent to establish the Individual Mandate as the ACA's 'essential' provision.... Because rewriting the ACA without its 'essential' feature is beyond the power of an Article III court, the Court thus adheres to Congress's textually expressed intent and binding Supreme Court precedent to find the Individual Mandate is inseverable from the ACA's remaining provisions....

"Under the law as it now stands, the Individual Mandate no longer 'triggers a tax' beginning in 2019. So long as the shared-responsibility payment is zero, the saving construction articulated in NFIB is inapplicable and the Individual Mandate cannot be upheld under Congress's Tax Power....

"The Court today finds the Individual Mandate is no longer fairly readable as an exercise of Congress's Tax Power and continues to be unsustainable under Congress's Interstate Commerce Power. The Court therefore finds the Individual Mandate, unmoored from a tax, is unconstitutional and GRANTS Plaintiffs' claim for declaratory relief ...

"All told, Congress stated three separate times that the Individual Mandate is essential to the ACA. That is once, twice, three times and plainly. It also stated the absence of the Individual Mandate would 'undercut' its 'regulation of the health insurance market.' Thirteen different times, Congress explained how the Individual Mandate stood as the keystone of the ACA. And six times, Congress explained it was not just the Individual Mandate, but the Individual Mandate 'together with the other provisions' that allowed the ACA to function as Congress intended....On the unambiguous enacted text alone, the Court finds the Individual Mandate is inseverable from the Act to which it is essential....

"For the reasons stated above, the Court grants Plaintiffs partial summary judgment and declares the Individual Mandate, 26 U.S.C. Section 5000A(a), UNCONSTITUTIONAL. Further, the Court declares the remaining provisions of the ACA, Pub. L. 111-148, are INSEVERABLE and therefore INVALID. The Court GRANTS Plaintiffs' claim for declaratory relief[.]"

[Texas v. U.S., No. 18-167 (N.D. Tex. Dec. 14, 2018)] (U.S. District Court for the Northern District of Texas)

[Opinion] American Academy of Actuaries Comment Letter to IRS on Proposed Regs for HRAs and Other Account-Based Group Health Plans (PDF)
"Table 1 provides a simplified illustration of the impact on the individual market of shifting a share of the highest spenders in the group market to the individual market and highlights the potentially large increase in average individual market claims. This example underscores the need for nondiscrimination rules to limit the ability of employers to target integrated HRAs solely to particularly high-cost workers." (Individual and Small Group Markets Committee and Employee Benefits Committee, American Academy of Actuaries)
Ninth Circuit Vacates Nationwide Injunction Which Barred HHS Enforcement of Interim Final Regs on Contraceptive Coverage (PDF)
57 pages. "The final rules are set to supersede the IFRs and become effective on January 14, 2019. The district court's preliminary injunction rested solely on its conclusion that the IFRs are likely to be procedurally invalid under the APA. If the final rules become effective as planned on January 14, there will be no justiciable controversy regarding the procedural defects of IFRs that no longer exist.... However, it is not yet January 14.... We affirm the preliminary injunction insofar as it bars enforcement of the IFRs in the plaintiff states, but we otherwise vacate the portion of the injunction barring enforcement in other states." [California v. Azar, No. 18-15144 (9th Cir. Dec. 13, 2018)] (U.S. Court of Appeals for the Ninth Circuit)
Should Independent Contractors Be Allowed to Pool Together for Large-Employer Health Insurance?
"Independent contractors, facing ballooning costs in the private market, want more options. The large-employer market harnesses power in numbers to negotiate lower rates because they have a larger pool to spread risk among. [State government] officials believe the Labor Department ruling would leave patients ... less protected.... Leaders of the state and local real estate associations say something has to give." (The Morning Call)
[Opinion] Prescription Drugs and Price Controls: What the Debate Gets Wrong
Podcast with transcript. "America has been called the 'Pharmacy to the World' because it's where more than half of new drugs get developed and tested in clinical trials. Patients in Europe and elsewhere enjoy the benefits of these breakthrough drugs. Price controls in the U.S. would significantly curtail new research and development project s-- resulting in a net loss for everyone." (City Journal, published by the Manhattan Institute for Policy Research)
New Rules for Section 1332 Waivers: Changes and Implications
"State waiver programs could reduce health insurance premiums for some, even many, state residents.... Parallel markets could divide the risk pool, isolating people with pre-existing conditions.... Shifting ACA subsidies to medically underwritten policies could destabilize ACA-compliant markets.... New counting rules could reduce protection for people with pre-existing conditions.... Other marketplace services and protections could be weakened under 1332 waiver programs." (Henry J. Kaiser Family Foundation)
Health Insurer, Employer Groups Call on Congress to End Surprise Billing
"The groups -- which include powerful lobbyists like the Blue Cross and Blue Shield Association, America's Health Insurance Plans, the National Business Group on Health, and Consumers Union -- called on Congress to prohibit providers from billing patients for costs not covered by the health plan when the out-of-network visit isn't the patient's fault. But they also said Congress should ensure any policy enacted doesn't increase premiums or discourage providers from joining a health plan's network." (Modern Healthcare Online; free registration required)
Tweaked Year-End Tax Relief Package Includes Retirement and Health Care Provisions
"Items in this legislation include ... [1] Provisions from the House-passed Family Savings Act -- including expansion of 529 savings accounts -- as well as the Senate Finance Committee-passed Retirement Enhancement and Savings Act.... [2] Delays the Medical Device Tax for five years, delays the Health Insurance Tax for two years, delays the Cadillac Tax for one year, and permanently repeals the Tanning Tax." (Committee on Ways and Means, U.S. House of Representatives)
Top Health Industry Issues of 2019: The New Health Economy Comes of Age (PDF)
54 pages. "The US health industry is looking less like a special case, an asterisk in the US economy, and is beginning to behave like other industries.... In the digital arena in 2019, life sciences companies will market digital therapeutics and connected devices targeting atrial fibrillation, hemophilia, substance abuse, birth control, depression, diabetes, epilepsy and other conditions. In 2019 the health industry will see value lines created by innovative providers and payers that have figured out how to subsist ... by serving almost entirely Medicaid or cash-strapped patients." (PwC)
[Opinion] New Report by HHS, DOL and Treasury Department on Healthcare Reform
"The report asserts that educated consumer choice allows for improved quality and lower cost, comparing Lasik surgery costs (down by 25%) and cosmetic procedure costs (which grew at less than half the rate of general inflation) not typically covered by healthcare in contrast to overall healthcare costs (which grew at twice the rate of general inflation). It cites lack of cost transparency and distinguishes 'shoppable' versus 'non-shoppable' costs indicating that only 6% of costs are incurred in an emergency department and therefore more consumerism can be imposed." (Frenkel Benefits)
[Opinion] ECFC Applauds Report on Reforming the Healthcare System by Increasing Consumer Choice
"[The report prepared by DOL, HHS, and the Treasury Department] outlines several legislative changes that could be made to increase the use of HSAs by: [1] Allowing innovative insurance products (such as those that provide payment for generic drugs below the deductible or fixed fee payments for primary care) to be coupled with HSAs; [2] Allowing individuals enrolled in a health insurance plan with a 70 percent actuarial value (AV), or below, to contribute to an HSA; and [3] Raising the contribution limits to HSAs." (Employers Council on Flexible Compensation [ECFC])
Handicapping the Legal Challenge by State Attorneys General to the Final DOL Association Health Plan Regs
"The states assert that the final regulations are inconsistent with prior DOL advisory opinions and case law.... But the DOL's prior legal position was fashioned entirely from advisory opinions, ... generically referred to as 'sub-regulatory' guidance.... A preponderance of the states that are parties to the litigation have enacted laws, or issued guidance, prohibiting the formation of large-group AHPs.... [T]he possible upheaval in their small group markets caused by widespread adoption of large-group AHPs is somewhere between worrisome and unthinkable to these states." [State of New York v. U.S. Dept. of Labor, No. 18-1747 (D.D.C. complaint filed July 26, 2018; plaintiffs' brief filed Aug. 23, 2018)] (Mintz)
[Opinion] Administration Encourages States to Use Waivers to Restructure Health Coverage Despite Technical and Legal Hurdles
"The discussion paper describes in detail thorny problems states would have to resolve to build the considerable and potentially costly infrastructure necessary to make these options work.... It is also far from clear how waiver proposals embodying the concepts could possibly comply with section 1332's 'guardrails' ... [T]he concepts are intended to implement the October guidance, which itself is arguably illegal because it makes significant substantive changes in the 1332 program without going through notice and comment rulemaking as required by the federal Administrative Procedures Act." (Timothy Jost, via The Commonwealth Fund)
[Opinion] The Tortuous History of HRAs: What Does the Future Hold?
"Which employers would go in this direction, under what circumstances, and for which employees? Would it vary by firm size? Do the strength of the economy and labor market conditions factor in? ... Employers may decide that they no longer need to offer health benefits to be competitive in the labor market during the next recession, and the combination of the insurance market reforms and the ability to give workers tax-free money to purchase health insurance on their own may finally put the future of employment-based health coverage to the test." (Paul Fronstin, EBRI [Employee Benefits Research Institute])
Experiences Under the ACA Suggest Association Health Plans Could Harm the Small-Group Insurance Market
"[In] each of the past three years ... each regulation permitting non-ACA-compliant plans -- self-insurance and transitional plans -- was associated with a risk profile for the ACA-compliant market that was 10 percent to 14 percent higher than in states without such policies. Also, states that adopted both policies had risk profiles that were 15 percent to 20 percent higher than states with neither regulation.... Association health plans ... could have a much more pervasive effect on market segmentation. Unlike transitional plans, they can enroll new subscribers, and, unlike self-funding, they are feasible for groups of any size, or self-employed individuals." (The Commonwealth Fund)
Judge Questions CVS-Aetna Merger, Says He May Halt Asset Integration
"A federal judge on Monday sharply questioned the Justice Department's decision to green-light CVS Health Corp.'s nearly $70 billion acquisition of Aetna Inc., and said he may order CVS to halt its integration of Aetna's assets while he considers the merger's implications. It is highly unusual for a judge to make such an announcement, since Justice Department antitrust enforcers had approved the deal in October under the condition the companies sell Aetna's Medicare drug business to preserve competition." (MarketWatch)
Can ERISA Plans Require That Fiduciary Claims Be Arbitrated? Should They? (PDF)
"Despite ERISA's endorsement of arbitration for certain issues, breach of fiduciary duty claims, which tend to involve greater damages and tend to attract the most media attention, are not arbitrated. One possible reason is that ... arbitration is not all it is chalked up to be -- for sophisticated fiduciary disputes, arbitration may in fact be just as time consuming, just as expensive, and less likely to lead to a just outcome." (Steptoe & Johnson LLP)
Reforming America's Healthcare System Through Choice and Competition (PDF)
119 pages. "This report identifies barriers on the federal and state levels to market competition that stifle innovation, lead to higher prices, and do not incentivize improvements in quality. It recommends policies that will foster a health care system that delivers high-quality care at affordable prices through greater choice, competition, and consumer-directed health care spending." (U.S. Department of Health and Human Services [HHS], U.S. Department of the Treasury, and U.S. Department of Labor [DOL])
Economic Analysis of 'Medicare for All'
"As of 2017, the U.S. was spending about $3.24 trillion on personal health care -- about 17 percent of total U.S. GDP. Meanwhile, 9 percent of U.S. residents have no insurance and 26 percent are underinsured -- they are unable to access needed care because of prohibitively high costs. Other high-income countries spend an average of about 40 percent less per person and produce better health outcomes. Medicare for All could reduce total health care spending in the U.S. by nearly 10 percent, to $2.93 trillion, while creating stable access to good care for all U.S. residents." (Political Economy Research Institute, University of Massachusetts Amherst [PERI])
Seventh Circuit: Medical Provider Entitled to Third Party Fee Schedules
"[T]he court reasoned that requiring Dr. Griffin to name a specific plan provision entitling her to higher reimbursement, was not necessary, since she clearly alleged she was not paid the usual, reasonable and customary amounts, consistent with section 1109 of the plan.... [The court further stated:] 'An assignee designated to receive benefits is considered a beneficiary and can sue for unpaid benefits under section 1132(a)(1)(B) ... It follows that Dr. Griffin also must be a beneficiary able to sue when she is denied requested information.' " [Griffin v. TEAMCARE,No. 182374 (7th Cir. Nov. 26, 2018)] (AVYM Healthcare Revenue Consultants)
[Guidance Overview] Overview of CMS' 1332 Waiver Concepts
"[T]he four concepts now clearly demonstrate that CMS is serious about giving states large amounts of flexibility in offering health insurance. And with that increased flexibility comes the rolling back of essentially all of the ACA requirements surrounding coverage and consumer protections. This can create the opportunity for more consumer options at a cheaper cost, but in turn it also allows actual coverage of services and consumer protections to decrease or vanish." (Mintz)
[Opinion] Trump Administration's New ACA Waiver Guidelines
"The administration is clearly signaling with these additions that even if states redistribute the strength and affordability of the coverage so that some of the most vulnerable people are disadvantaged, they would entertain the waivers that cover the same number of people." (Henry J. Kaiser Family Foundation)
[Opinion] Innovative Options to Cut Health Insurance Costs by Expanding the Circle of Coverage: A Report for State Consumer Leaders and Policymakers (PDF)
20 pages. "[1] Move toward implementing a Medicaid buy-in policy that lets consumers with incomes too high for Medicaid enroll in substantially more affordable insurance.... [2] Supplement federal financial assistance with extra help for paying premiums and lowering deductibles and other cost sharing.... [3] Implement the ACA's Basic Health Program (BHP) option ... [4] Provide more public education and hands-on assistance to help consumers obtain and retain coverage.... [5] Use state income tax filing to give the eligible uninsured opportunities to seek coverage, including by making enrollment as automatic as possible.... [6] Enact state-based individual mandates ... [7] Lower premiums by using public reinsurance dollars to pay individual market claims." (Families USA)
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