Stakeholders From All Sides Brace, Rally As King Heads To Court
Transcription
Stakeholders From All Sides Brace, Rally As King Heads To Court
Vol. 3, No. 9 — March 4, 2015 Exchange Round-Up Stakeholders From All Sides Brace, Rally As King Heads To Court Congressional Democrats pitched a last-minute defense of the Affordable Care Act Tuesday (March 3) as President Obama’s signature law again heads to the U.S. Supreme Court, this time for oral arguments in King v. Burwell, while at the same time key members of the GOP raced to put forth viable solutions should the court rule that subsidies cannot flow through the federal exchanges — a result that the GOP is hoping for, but which could cause significant political fallout. The lawsuit questions whether subsidies for health insurance premiums can be offered through the federal marketcontinued on page 4 Congressional Aide: Ryan’s King Fix Wouldn’t Limit Employer Tax Exclusion A Republican House aide tells Inside Health Policy that House Republicans’ fix to a potential Supreme Court ruling to end premium subsidies for those insured by the federal exchange would not cap employer-sponsored subsidies to offset the costs of the GOP plan to offer advance-able, refundable tax credits, but instead would pay for the credits with “savings from the eliminated subsidies.” But health care experts say if the court axes the federal subsidies then providing credits after the fact would actually cost the federal government. The aide says that is a “baseline issue” that he was confident could be addressed. In several opinion pieces — most recently a Monday editorial in the Wall Street Journal penned by the the chairs of continued on page 6 Senate Dems Press HHS For Pregnancy Special Enrollment Period More than three dozen Senate Democrats asked HHS in a letter Monday (March 2) to add pregnancy to the list of major life events that would trigger a special enrollment period (SEP) in federally run exchanges, less than two weeks after CMS opted not to create any new exceptions for SEPs in the final 2016 benefit and payment parameters rule released Feb. 20. “This is a critical protection — good maternity care is essential for the well-being of children, and studies show that maternal mortality rates are three to four times higher for women who do not receive prenatal care,” the letter states. “However, if a woman becomes pregnant at a time outside of the Open Enrollment period and is uninsured, or enrolled continued on page 8 Senate GOP’s ‘Transitional’ ACA Plan Vague On Details A trio of key GOP senators Monday (March 2) pledged to push legislation offering financial assistance on a transitional basis to help Americans keep their health plans should the Supreme Court rule the ACA’s premium tax credits are not available in the federal exchange, but the proposal they outlined in a Washington Post editorial is vague on specifics. Part two of the plan would give federal exchange states flexibility to design more competitive health insurance markets but keep the ACA’s mandates and subsidies in place for states with their own exchanges, though even those could veer toward the bill’s flexible insurance model. Meanwhile, House GOP members plan to propose their own version in a editorial set to be published Tuesday, continued on next page IN THIS ISSUE . . . Angoff: No Talk That Subsidies Unavailable In Fed Exchange When At HHS .......................................... p3 GOP Lawmaker, Upset By Counihan’s Testimony, Suggests Subpoenaing Data ..................................... p9 Top GOP Lawmakers Criticize Union Carve-Outs In Cadillac Tax Guidance .......................................... p12 Hatch: Why Did CMS Give Issuers Termination Option If No King Back-Up Plan? ................................ p14 according to House Ways and Means Chair Paul Ryan (R-WI). The Senate GOP proposal is “still lacking detail on what the alternative is and whether it undermines the stability of what is now for the very first time ever a reliable individual market with 18 million people getting ACA-compliant coverage at stable rates because of broad risk pooling,” says Joel Ario, a former administration official and now managing director at Mannatt Health Solutions. “First and most important,” wrote Sens. Orrin Hatch (R-UT), John Barrasso (R-WY) and Lamar Alexander (R-TN) in the op-ed. “we would provide financial assistance to help Americans keep the coverage they picked for a transitional period. “Second,” they add, “we will give states the freedom and flexibility to create better, more competitive health insurance markets offering more options and different choices.” But they are vague on what such an alternative would be. “Republicans understand that what works in Utah is different from what works in Tennessee or Wyoming,” the write. “We want to give states the time and flexibility to design health-care systems that work for them, not for the bureaucrats in Washington.” Under their plan, people who live in states that have state exchanges will continue to be subject to Obamacare’s “costly mandates and rules, along with the subsidies,” the senators write. But they add that those states could also opt for the alternative solution. “Every state would have the ability to create better markets suited to the needs of their citizens,” they say. The proposal does not include a timeline for the transition, but lawmakers have previously indicated that they’d like any bridge policy to carry over past the next presidential election. In a recent Wall Street Journal editorial, Nebraska GOP Sen. Ben Sasse suggested an 18-month transition period during which consumers using the federal exchange can keep their subsidies. In the interim, Sasse said, “Republicans need to unify around a specific set of constructive, longer-term solutions, and then turn the 2016 presidential election into a referendum on two competing visions of health care.” Hatch’s office did not respond by press time for details on his transitional timeline. The op-ed fails to offer specifics of what the trio meant when suggesting that they would provide states “freedom and flexibility” over their insurance markets. Nor does it mention that the law itself already has a seemingly similar provision. Section 1332, a provision championed by current Senate Finance Ranking member Ron Wyden (D-OR), gives states the ability to opt-out of key ACA requirements and mandates and to use funding that would otherwise flow to individuals in the form of subsidies to support those alternatives. Under the law, this provision does not go into effect until 2017. However, some lawmakers — and previously the White House — have previously sought to speed up the timeline. In February 2011, the White House issued a proposed rule for the Section 1332 waivers that were at the time six years away. Six days later, the White House issued a release endorsing the Empowering States to Innovate Act, coauthored by Wyden, Mary Landrieu (D-LA) and Scott Brown (R-MA), that would have moved the implementation date up to 2014. That will never passed Congress. The White House stressed at the time that to get a waiver a state must provide coverage at least as comprehensive and affordable as that that offered through the exchange, and a plan that would cover as many residents. The state’s plan would also need to be budget neutral. Some waiver ideas that the White House suggested included: A streamlined system that links tax credits for small businesses with tax credits for low-income families, alternatives to the individual responsibility provision — such as automatically enrolling individuals in health plans — that achieve similar outcomes, options to increase competition and provide consumers with additional choices, an increase in the number of benefit levels to provide more choices for individuals and small businesses, and “immediately allowing large businesses interested in doing so to purchase health insurance through the new private marketplace, the Statebased health insurance Exchange.” The waiver rules were finalized in 2012. Several states have and are still eying the state innovation models. Vermont, for example, had wanted to use the provision to help transition the state into a single payer system — an idea that has since been dropped. Hawaii, Rhode Island, New Mexico, Minnesota and North Dakota are also exploring the waivers. CMS did not say by press time whether any states have sent in official applications for waivers. The agency did say, however, that the ACA allows the waivers beginning in 2017 and also requires a state to engage in meaningful public notice in advance of submitting a waiver proposal. “Because waivers cannot currently be granted until 2017, it will be difficult for a State to submit a strong application (with relevant and timely data) substantially in advance of that date,” the agency says. While the model has been discussed as a potential pathway in the event of a King ruling adverse to the administration, it has also been pointed out that such a ruling could also preclude the model from working as a solution. This is because the funding source for the waivers is the money that would have otherwise have been spent on subsidies — so if those subsidies cannot go to those exchanges, then they may not be available at all. — Amy Lotven 2 Health Exchange Alert - www.InsideHealthPolicy.com - March 4, 2015 Angoff: No Talk That Subsidies Unavailable In Fed Exchange When At HHS Jay Angoff, who was the administration’s first chief of the ACA implementation office, tells Inside Health Policy that while during his tenure many HHS officials clearly wanted states to establish their own exchanges, there was never an indication that subsidies would not be available through the federal exchange. Angoff, who led HHS’ Office of Consumer Information and Insurance Oversight (OCIIO) until early 2011, also says he thinks there are ways HHS could administratively soften the impact of an adverse King ruling but that the solution should be up to those striving to end the subsidies, not the administration. There are very few stakeholders who want the Supreme Court to strike the subsidies, Angoff says, referring to the high-profile Burwell v. King case heading to oral arguments Wednesday (March 4). Insurers, drug companies, hospitals, doctors and states benefit from keeping the subsidies intact, he says. He expects the court to uphold the subsidies and to do so by a wider margin than expected — though not necessarily unanimously. He notes that the petitioners have a stronger burden than the administration in the case as they need to prove that there is no other reasonable reading of the law other than what they propose. In this case, that is that Congress wanted the subsidies to only flow through an exchange established by a state. But Angoff tells Inside Health Policy that such a concept was never discussed during his tenure at HHS, though there were all kind of reasons that the department wanted the states to take up their own exchanges. One reason had to do with funding. While the law had appropriated unlimited funding to help states establish their own exchanges, there was none for the federal exchange. He points out that in the beginning many conservative states took large amounts of grant money, but later — once the politics came into play — some states opted to give it back. Angoff further says that some department officials felt at the time that the law would be seen as more successful if more states created exchanges. Angoff, however, says he never bought that argument. “I think the federal exchange is fine,” he says. He repeats that no one ever suggested that the subsidies might not be available in the federal exchange. There are also many states — even some with GOP governors — who have urged the high court to uphold the subsidies, he says. As far as Congressional Republicans, Angoff suspects that while they’re having “fun” with the thought of a chance to revisit the law, a ruling that is ostensibly in their favor could very well turn into a nuisance for the party. Angoff says there are things HHS might be able to do if it loses the King case. For example, he says there may be different ways to define a “state-based exchange.” But as far as allowing states to “rent” the Healthcare.gov technology — one solution that has been proposed — he was unsure if that would be feasible. But he also says he believes the HHS secretary when she says there is no fall back plan and stresses that he doesn’t want to minimize the difficulties that a Supreme Court decision against the administration would create. His view is that it’s not the administration’s job to address a situation brought about by the opponents of the law. It’s the people who want to strike the subsidies and their allies who should be focused on a fix, he said. In November, Angoff suggested that mainstream Republicans should not be too celebratory about the case. Much of the initial reporting on the SCOTUS decision has focused on the administration, but it is the insurance industry that has the most to lose, and is likely the most concerned, by the high court’s move, Angoff said at the time. He added he was very interested in seeing how mainstream Republicans, who are often allied with the insurance industry, will react if the subsidies are shot down. Issuers are reaping the most benefit from the subsidies, so industry must be telling GOP members that while they’ve “had their fun” with anti-Obamacare rhetoric it’s time to get serious, he added. For the GOP, he said, the situation may be an example of “be careful what you wish for.” Another Democratic consultant agreed with Angoff’s assessments at the time. The ACA is a boon to health insurers and hospitals alike, said the source. Republicans care mostly about insurers, and many are also sympathetic to their local hospitals. Otherwise, the slowdown in the health spending and insurance rates is hurting the sector, the source said in November, days after the court agreed to take up the case. GOP members over the past week have said they are working on and will soon introduce a fix. Most recently, Nebraska GOP Sen. Ben Sasse penned an editorial in the Wall Street Journal outlining a solution. “I propose a two-part strategy to avoid snatching defeat from the jaws of victory: First, in the event that the court strikes down the subsidies as illegal, Congress must be prepared to offer immediate, targeted protection to those hurt by this administration’s reckless disregard for the rule of law. ObamaCare took these patients hostage. Conservatives have a duty to save them,” he said. Sasse adds that within a week he plans to introduce a bill, based on COBRA, that would allow Congress to offer individuals at risk of losing insure “the ability to keep the coverage they picked, with financial assistance, for 18 transitional months.” “This would simultaneously avert the full-scale implementation of ObamaCare in these 37 suddenly desperate states. It would also help protect suffering patients entangled in the court’s decision to strike down illegal subsidy payments,” he said. “Second,” Sasse writes,” Republicans need to unify around a specific set of constructive, longer-term solutions, and Health Exchange Alert - www.InsideHealthPolicy.com - March 4, 2015 3 then turn the 2016 presidential election into a referendum on two competing visions of health care. Simply opposing ObamaCare isn’t enough. Republicans must address this country’s health-care crises—cost and uninsurance—both of which have been exacerbated chiefly by excessive federal meddling,” he adds. He says he worries that “unless those of us who oppose ObamaCare unite behind an approach that offers Americans a better alternative, we could lose the whole war,” he said. But he also says that like most conservatives, he is hopeful about the court’s decision. “The law explicitly requires states to establish an exchange to unleash entitlement payment,” Sasse writes. “Because ObamaCare’s central planning is unworkable and unpopular, most states opted not to participate or to establish an exchange. So if the court affirms the law’s actual language over the administration’s incessant political rewriting, it could be a mortal blow to ObamaCare.” — Amy Lotven Exchange Round-Up . . . begins on page one place in 34 states, pitting the intent of the law’s authors against a literal reading of the ACA’s phrase “established by the State” when describing what entities can disburse tax credits. The law’s supporters argue that Congress obviously intended to provide subsidies to all Americans, while the opponents say that despite what Congress may have wanted to express, the language clearly limits the subsides to the state exchanges. But Sen. Chris Murphy (D-CT) told Inside Health Policy in a call Tuesday that context shouldn’t matter: “I don’t think you have to read the statute in whole in order to interpret the line that is at the heart of the plaintiff’s argument.” Murphy told reporters that a ruling in favor of the plaintiffs would be the “greatest instance of judicial overreach” that paints congressional authors as liars. It’s not titled the “Unaffordable Care Act,” Sen. Jeff Merkley (D-OR) added, which he said is exactly what it would be if the government required people to get coverage but did not provide the tax credits to do so. “It would be an absurd outcome for the court to strike down these credits,” Merkley said. “It’d be catastrophic.” Sen. Chuck Schumer (D-NY) said on the call that Congress “never intended for state boundaries to become fences” and attacked new GOP proposals to replace the ACA. “An op-ed is not a plan,” he said. “Even if these opponents were able to follow through … they would fall woefully short.” Several supporters of the law, including the advocacy group Families USA, plan to hold rallies at the courthouse on Wednesday highlighting the impact of a potential decision adverse to the administration. The case threatens to pull subsidies from around 9 million Americans who depend on the tax credits to purchase health plans on the exchange, which experts say would trigger a “death spiral” in the insurance market with skyrocketing premiums and a sicker risk pool. Some states in trouble said the case is prompting them to explore options for creating their own exchange, while others see it as an opportunity to dig in their heels on the individual mandate and end what they believe is federal infringement of personal rights. Several governors recently made statements on what they may do in the case of a ruling against the administration, and the consultant Leavitt Partners examined those comments in a new brief out Tuesday. Top GOP Sens. Orrin Hatch (R-UT), John Barrasso (R-WY) and Lamar Alexander (R-TN) on Monday (March 2) pitched a transitional health care plan that would provide financial assistance to help Americans keep their coverage and give states with federal exchanges flexibility to design their own insurance markets. Critics said the plan lacks detail on first glance, and its backers have not come out with a concrete timeline for how it might unfold. Hatch is currently seeking input from stakeholders, lawmakers and from governors, his office said. Republican Reps. Fred Upton (MI), Paul Ryan (WI) and John Kline (MN) also proposed their own ideas in an editorial Tuesday (March 3). The House plan aims to “make insurance more affordable by ending Washington mandates and giving choice back to states, individuals and families” and “support Americans in purchasing the coverage of their choosing,” the trio wrote in The Wall Street Journal. The House proposal outlined in the paper does not include a transitional period, but a GOP aide says that would be discussed following the court decision. Meanwhile, lawmakers have long pressed HHS Secretary Sylvia Burwell and other administration officials for their post-King contingency plans, and recently suggested that a 100-page document is being circulated at the top of HHS detailing steps that could mitigate the effect of an adverse ruling. But Burwell told Energy and Commerce health subcommittee chairman Rep. Joe Pitts (R-PA) at a hearing Thursday that she had no knowledge of such a blueprint, after Pitts informed her that someone within HHS told him about the paper. If it does exist, it would contradict Burwell’s earlier claim that her department knew of “no administrative actions that could … undo the massive damage to our health care system” if the plaintiffs win. Committee staff said they have not seen the document but confirmed that they were told it was being discussed by senior HHS employees. 4 Health Exchange Alert - www.InsideHealthPolicy.com - March 4, 2015 Hatch also questioned why CMS would put an exit clause in its contracts with Healthcare.gov issuers that would allow them to pull out if federal subsidies are disallowed. “While the Administration assures HealthCare.gov policyholders that ‘nothing has changed,’ it has been conveying a contradictory message to health insurance companies,” Hatch wrote to outgoing CMS Administrator Marilyn Tavenner Feb. 25. Infrastructural and tax-related problems are still fresh on the minds of members in both chambers as well. Sens. Chuck Grassley (R-IA) and Rob Portman (R-OH) told Burwell to address lingering issues with premium subsidy calculations that plagued the tax forms given to more than 800,000 Americans — about 5 percent of whom had already filed their taxes this year. The IRS, meanwhile, said the 50,000 or so people that did file do not need to do so again. CMS has also said that it will be sending out the corrected forms as early as this week. Grassley and Portman also joined the House Energy and Commerce Committee in demanding an estimate of when back-end work on Healthcare.gov will finally be done, after Exchange CEO Kevin Counihan suggested that the site would not be fully automated for another two years. More than three dozen Senate Democrats also chimed in this week to ask HHS to add pregnancy as a major life event that would trigger a special enrollment period under the ACA, after CMS issued a final benefit and payment parameters rule that declined to make any new exceptions to the standard enrollment process. Consumer advocates said last week that they are disappointed in HHS’ choice to side with insurers in balking at a pregnancy SEP. “(I)f a woman becomes pregnant at a time outside of the Open Enrollment period and is uninsured, or enrolled in a grandfathered plan that does not cover maternity services, then she will not be able to access coverage for maternity care,” the senators said in a Monday (March 2) letter. “We encourage you to use that authority to create a special enrollment period to maximize women’s access to coverage.” The myriad of concerns are overshadowing final HHS reports that show 8.8 million people signed up for coverage in qualified health plans through the federal marketplace by Feb. 22, including nearly 41,000 who sneaked in at the last minute thanks to a deadline extension that expired Feb. 20. Around 12 million are expected to have enrolled in state- and federally run exchanges nationwide, exceeding some governmental expectations while staying on par with expert estimates. CMS also issued its first snapshot on re-enrollment. These numbers indicate more than half of the 4.17 million people who re-enrolled in coverage through the FFM did so actively. Of those 2.21 million who actively enrolled, 1.2 million chose a different plan. Another 2.83 million were initially passively enrolled on Dec. 16. However, since then 200,000 people canceled their plans and another 90,000 people were terminated after failing to provide eligibility documentation. (HHS had originally believed that an additional 200,00 people would be cut from coverage due to the citizenship or immigration related issues, but the number came in lower than expected). Another 580,000 people returned to the exchange after being auto-enrolled, making the total number of passive enrollments about 1.96 million, CMS reported. In the states: As fears of losing federal subsidies set in, Ohio Democrats plan to introduce state legislation this week that would create a state-run exchange. If nothing else, they hope to start a conversation about what that move would entail because, should the administration lose the Supreme Court case in June, Ohio would say goodbye to more than $500 million in premium tax credits, the Columbus Dispatch reported Tuesday (March 3). State Republicans aren’t sold on the idea, but Gov. John Kasich said last month that Ohio would have to “figure something out” if the FFM is crippled. Texas Lt. Gov. Dan Patrick and Republican state senators on Monday (March 2) hope to exercise their own local control over health care, writing a letter to President Obama asking for more flexibility with the state’s Medicaid program. The state GOP cited unsustainable, irresponsible cost growth and drained resources, while Democrats said loosening the federal grip on Medicaid would widen a coverage gap already made worse by refusing to expand the program under the ACA. At the same time, Oregon’s House voted Feb. 27 to dissolve its abandoned Cover Oregon exchange as a public corporation and give the state’s Department of Consumer and Business Services control over the exchange. Cover Oregon faltered from numerous missteps in its first year after spending $300 million with little results, prompting lawmakers to jump ship in favor of the federal exchange at Healthcare.gov for the second open enrollment period. “By moving the marketplace under the management of the Department of Business and Consumer Services, Senate Bill 1 ensures that the state exchange will be subject to financial management statutes, personnel laws, state contracting laws, restrictions on purchasing, and oversight by the Legislature,” Oregon station KTVZ reported last week. “Not much would change for consumers, who would still be able to sign up for health insurance using a federal website, HealthCare.gov.” But Oregon could find itself scrambling back to a state exchange depending on the result of King v. Burwell this June. Meanwhile, the director of Rhode Island’s exchange is speaking in favor of keeping the state-based marketplace Health Exchange Alert - www.InsideHealthPolicy.com - March 4, 2015 5 despite talk among state lawmakers of disbanding it. Anya Rader Wallack, director of Health Source RI, and Gov. Gina Raimondo support the exchange as a way to keep health care cost controls in local hands rather than federal. Republican lawmakers want to swap their exchange for the federal platform, hoping the change would keep a financially unstable exchange from imploding. In D.C., the American Society of Association Executives wrote a letter to the city’s health committee chair Councilwoman Yvette Alexander outlining technology issues, delays, tax hikes and widespread confusion that continue to plague employers in the local Small Business Health Options Program marketplace. Around 82 percent of the group’s D.C. member organizations have fewer than 50 employees and are required to use the D.C. Health Link exchange. D.C. Council held an oversight hearing Feb. 25 on the Health Benefit Exchange Authority, which oversees the locally run marketplace. “DC associations are concerned that they will be forced to change their business model if costs rise at an unsustainable rate,” the Feb. 23 letter said. “ASAE members have written to us that they are troubled the SHOP does not currently have the technological capability needed to ensure its success. We are extremely concerned that when the private marketplace is closed for businesses with 51-100 employees, the SHOP may not be able to handle the increased traffic. ASAE urges you and your fellow Councilmembers to delay any changes that could overburden DC Health Link before the technology is ready.” The D.C. exchange’s board is also expected to vote on whether it will put in place a special enrollment period for those who claim not to have known about tax penalties for lacking coverage, taking up the issue at its March 9 meeting. A Florida state law banning the regulation of exchange policy prices also expired on Sunday (March 1), The Palm Beach Post reported. “State legislators, whose 60-day annual session starts today, could reimpose an order to give insurers whatever rate hikes they ask for,” the Post reported Tuesday (March 3). “If lawmakers do nothing, though, Florida’s insurance commissioner can regulate rates. The question then becomes whether he will, and how aggressively.” And a Maryland state bill would change the point at which stop-loss insurance kicks in from $10,000 to $40,000, under self-funded insurance plans where businesses pool money to cover their employees’ health costs should they exceed a certain amount. The Democrat-sponsored proposal will face its first hearing Wednesday (March 4). “The proposed shift comes as more small companies are opting for self-funded health plans. The federal Affordable Care Act now requires businesses with 50 or more full-time employees to buy health insurance or pay a penalty and establishes a host of new rules and regulations tied to what those plans must offer,” the Baltimore Business Journal wrote March 3. “Self-funded plans — once an option only for large companies that were able to absorb employee’s health costs — are becoming increasingly popular among small firms looking to insure their employees amid rising premium prices and mounting regulations on fully funded plans.” In the latest post-open enrollment sign-up reports, Washington state showed 159,556 enrollees in qualified health plans in the individual marketplace and only 290 people enrolled through SHOP as of Feb. 15; Oregon showed 113,219 on-exchange and 102,232 off-exchange enrollees for a total 215,451 sign-ups through Feb. 22; Massachusetts totaled 125,402 paid QHPs and 286,255 in Medicaid as of Feb. 26; and Rhode Island had 30,001 paid QHP enrollments as of Feb. 23 and 3,282 people in paid SHOP coverage as of Feb. 21. Extended special enrollment periods are still running in Kentucky, Maryland, New York, Washington state, Connecticut, Colorado, D.C. and Hawaii. — Rachel S. Karas House GOP Unveils KIng Contingency . . . begins on page one three House committees with jurisdiction over health issues — GOP lawmakers say they believe the administration overstepped by extending the subsidies to residents in federal exchanges but that something must be done to protect Americans should the court agree. None of the editorials address pay-fors; however, the Patient CARE proposal advanced by Senate Finance Chair Orrin Hatch (R-UT), Sen. Richard Burr (R-NC) and Rep. Fred Upton (R-MI) suggested limiting the employer tax exclusion as a way to offset the tax credits for individuals envisioned in their plan. Under the Feb. 5 proposal, the current unlimited tax deduction for employer-sponsored health benefits would be capped at $12,000 for individuals and $30,000 for family plans. Upton, who chairs Energy and Commerce, also signed onto the House GOP plan, which he unveiled Tuesday (March 3) with Ways and Means Chair Paul Ryan (R-WI) and Education and Workforce Chair John Kline (MN). In the high-profile King v. Burwell case being heard by the U.S. Supreme Court Wednesday (March 4), the petitioners claim that Congress expressly only allowed the government to provide subsidies to Americans who purchased a plan through an exchange established by a state, and not by the federal government. The Wall Street Journal op-ed piece by the three House Republicans lays out a two-part plan, should the court rule in favor of King. 6 Health Exchange Alert - www.InsideHealthPolicy.com - March 4, 2015 First, they write, Congress should make coverage more affordable by letting states opt out of having to provide the ACA’s essential health benefits, which they argue would lower prices and provide more choices. States could also opt out of the employer and individual mandates. They also propose letting people to purchase coverage across state lines, enacting medical malpractice reform, and letting businesses band together to purchase coverage. “Our committees and nonpartisan analysts alike estimate that these proposals will cut costs and raise quality across the board,” they write. The GOP plan also would retain many popular ACA provisions, such as letting children stay on their parents’ coverage until age 26 and prohibiting lifetime benefit limits. They also propose to protect people with pre-existing conditions and offer guarantee policy renewal for those already enrolled in a plan. Second, they would provide Americans with refundable tax credits that would be used to offset the cost of insurance and could be doled out in advance. The credits would be adjusted based on age, so the elderly — who generally face higher premiums — would get more assistance. Under current law, anyone earning from 100 percent to 400 percent of the federal poverty level is eligible to receive advanced premium tax credits (APTCs). The Patient CARE Act would lower the credits to those earning up to 300 percent FPL. The GOP aide says that lawmakers will be work with the Congressional Budget Office on income thresholds under their plan. The liberal Center for American Progress (CAP) recently issued a brief saying that it would be very difficult for Congress to act should the subsidies be ruled illegal because the CBO would immediately alter its scoring to reflect the high court’s decision. The Urban Institute has said that elimination of the premium tax credits would save the federal government about $340 billion, and CAP agreed. Considering legal, practical, and political constraints, CAP’s Topher Spiro wrote: “CBO would likely assume that not many — if any — additional states would set up their own marketplace to qualify for tax credits or otherwise be able to access equivalent funding. As a result, the Urban Institute’s estimate of a $340 billion reduction in federal spending is a reasonable approximation of how CBO would update its baseline.” When asked how the subsidies could be used as an offset for the proposed tax credits if they are eliminated by SCOTUS, the aide said, “That’s a baseline issue I’m confident we can address.” House Ways and Means ranking Democrat Sander Levin (MI) blasted his GOP colleagues’ so-called “off-ramp” as vacuous dead end. “Republicans are trying to send a false message to the Supreme Court that they could repair the enormous damage that this case could bring to the health care of Americans when they cannot even address basic funding for the Department of Homeland Security. This plan is vacuous. The result of an adverse Supreme Court ruling would be hugely dangerous,” he writes. Unlike the Senate proposal, penned by Hatch, John Barrasso (R-WY) and health committee Chair Lamar Alexander (R-TN), the House GOP members do not specifically call for a transitional period in the event of a ruling against subsidies. Instead, the piece leaps directly into a longer-term reform plan. The House GOP aide says that discussion about any sort of a transition “will have to wait until the Court rules to see how quickly it puts its orders in place.” The Senate GOP proposal, which was published in a Washington Post op-ed on Monday (March 2), also fails to include a time frame for a transition. A Hatch aide says that discussions on details are still underway as Barrasso is leading a working group on the issue. “As noted in the piece yesterday, there is consensus among Republicans to want to protect the Americans who will be harmed by this ill-conceived law while moving away from Obamacare,” the aide said. “We know we need to provide a transitional period and we know we want to give states flexibility create a better health insurance market. While there is currently a robust debate of ideas on how to do it best, discussions are ongoing within the working group and the exact details will be decided upon in consultation with lawmakers in the House and Senate. Our working groups continue to discuss the best path forward, and as the Op-Ed states, we are working together.” — Amy Lotven SUBSCRIPTIONS: 703-416-8500 or 800-424-9068 [email protected] NEWS OFFICE: 703-416-8572 Fax: 703-416-8543 [email protected] Health Group Publisher: Senior Editor: Associate Editor: Donna Haseley ([email protected]) Amy Lotven ([email protected]) Rachel Karas ([email protected]) Production Manager: Production Specialists: Lori Nicholson ([email protected]) Daniel Arrieta, Michelle Moodhe Health Exchange Alert is published every Wednesday by Inside Washington Publishers, P.O. Box 7167, Ben Franklin Station, Washington, DC 20044. Subscription rates: $705 per year in U.S. and Canada; $755 per year elsewhere (air mail). © Inside Washington Publishers, 2015. All rights reserved. Contents of Health Exchange Alert are protected by U.S. copyright laws. No part of this publication may be reproduced, transmitted, transcribed, stored in a retrieval system, or translated into any language in any form or by any means, electronic or mechanical, without written permission of Inside Washington Publishers. Health Exchange Alert - www.InsideHealthPolicy.com - March 4, 2015 7 DEms Urge Pregnancy SEP . . . begins on page one in a grandfathered plan that does not cover maternity services, then she will not be able to access coverage for maternity care. … We encourage you to use that authority to create a special enrollment period to maximize women’s access to coverage.” Consumer advocates and women’s rights groups had asked HHS to set up special SEPS for women who are pregnant or are victims of domestic violence in order to better protect women and children, to no avail. CMS did not nix the idea entirely, though, saying in the rule that while it will not finalize more triggering events at this time, the agency will continue to exercise its authority to create SEPs “through sub regulatory guidance.” HHS Secretary Sylvia Burwell told reporters at a Feb. 18 press conference that SEP decisions are based on input from stakeholders and “how insurance companies made the determinations when they have periods for open enrollment or not.” Insurers are wary of the pregnancy SEP because they fear it would encourage women to put off buying coverage until they need it, and say that a new exception could create uncertainty in the risk pool from unexpected pregnancies and lead to higher premiums. But Christina Postolowski, health policy manager at the millennial advocacy group Young Invincibles, said the decision to deny women any chance to get prenatal care contradicts the administration’s goal of expanding access to coverage. She says her group is asking HHS to immediately issue new guidance that classifies pregnancy as a SEP trigger. In partnership with Daily Kos and RH Reality Check, Young Invincibles is circulating a petition to drum up support for its cause and plans to send the signatures to HHS. Postolowski said the group plans to set up meetings with HHS officials to discuss the issue. “We’re certainly disappointed … especially given the widespread support in the comments,” Postolowski said, adding that she is hopeful that administration officials will change their minds in coming months. She also wants an explanation as to why HHS has now denied the group’s request twice. “They don’t want to pay for it,” Postolowski said of insurers. “We think that concerns about any adverse selection are really mitigated now after the ACA.” The risk-sharing provisions in the ACA are already in place to curb problems that may arise, she adds. Young Invincibles last week joined with March of Dimes in a last-minute push for a pregnancy SEP, adding its voices to around 20 other groups who say the concession would protect mothers from unaffordable costs of care while a baby develops, as well as ensure better health outcomes once the child is born. A recent Young Invincibles report estimated that the exception would aid 15 million young adults who are covered under a parent’s health insurance policy but may not receive maternity care as a dependent, and more than 300,000 students who are covered by self-funded student health plans, which are not required to cover essential health benefits including maternity care. Postolowski also found that women in grandfathered plans are at risk. “We do not know how many women are covered on a transitional plan without maternity coverage,” the report added. “However, experts estimated that six to 10 million consumers got plan cancellation notices in 2013; a proportion of these consumers could now be covered on a transitional plan, if their canceled plan was continued and they re-enrolled in that plan.” The SEP would also protect pregnant women from losing essential health benefits if their income is too high to qualify for Medicaid or the Children’s Health Insurance Program, which cover maternity care in some states. The administration is similarly rejecting a permanent SEP for domestic abuse victims. In March 2014, however, HHS created a one-time, 60-day SEP that allowed anyone who is married and a victim of domestic violence to obtain coverage for themselves and their dependents through the federal exchange. State-based exchanges are still encouraged to look at SEP options that would benefit their own residents. But experts believe it would be harder to get a new SEP through local legislatures than it would be to allow for special enrollment through the federal marketplace, and only a few states have contemplated the idea. Those lobbying for the SEP trigger are “certainly hoping for a fix at the federal level” because going state by state would be less efficient, Postolowski added. Organizations like Raising Women’s Voices for the Health Care We Need are already joining with state groups to speak up for the pregnancy SEP trigger. Consumer and reproductive health advocates in Colorado, Maryland, New Jersey, New Mexico and Oregon signed onto the Raising Women’s Voices comment letter that specifically urged HHS to make changes for pregnant women in the final NBPP rule. Leni Preston, chair of the Maryland Women’s Coalition for Health Care Reform, said that though states will definitely look into the possibility of adding pregnancy as a triggering event, Maryland advocates are not actively working toward that goal. She said her group first began exploring the idea as a way to safeguard women whose Medicaid coverage was 8 Health Exchange Alert - www.InsideHealthPolicy.com - March 4, 2015 in jeopardy due to proposed program cuts in the next state budget. They talked about potentially enacting a SEP to protect only pregnant women who would be affected by the state’s Medicaid cuts, Preston said. She hopes the idea would get less push-back from issuers than attempting to create a pregnancy trigger for all. She also believes the Maryland Health Connection exchange would be open to the concept. A D.C. Council working group also debated the change in 2013 but decided pregnancy did not warrant a spot on the “major life events” list. “The group was divided with none of the carriers wanting to extend such a special enrollment period, and consumers having mixed opinions on it,” according to meeting minutes from May 2013. In the meantime, Postolowski believes families will start to see fewer plans that don’t offer maternity benefits, which would let women who are already covered get the care they need and lessen risks to mother and child. — Rachel S. Karas GOP Lawmaker, Upset By Counihan’s Testimony, Suggests Subpoenaing Data Several GOP members of the House oversight committee health panel, most prominently North Carolina Rep. Mark Meadows, allege that Marketplace CEO Kevin Counihan failed to provide requested information and to properly prepare for a hearing during which he was unable to produce answers to myriad questions. Meadows, who says he has long sought detailed data on the number of people “passively” re-enrolled by CMS — including the number of those enrolled into a different plan — suggested at the end of the hearing that the committee consider subpoenaing the information “because it is obvious that this gentlemen is stonewalling the committee.” The Feb. 26 oversight hearing came one day after CMS released new enrollment data, but the congressman still seeks information on the number of passively enrolled individuals who were put into different qualified health plans. At the hearing, Meadows grilled Counihan as to why after 23 emails and several other communications he did not release the enrollment information until the night before the hearing and even then it was only partial. The data released by CMS show that about 8.84 million people had enrolled through Healthcare.gov since Feb. 22. The data also included figures on active and passive re-enrollment. These numbers indicate more than half of the 4.17 million people who re-enrolled in coverage through the FFM did so actively. Of those 2.21 million who actively enrolled — meaning that they went to the site and picked a plan — 1.2 million chose a different plan. Another 2.83 million were initially passively enrolled on Dec. 16. However, since then 200,000 people canceled their plans and another 90,000 people were terminated after failing to provide eligibility documentation. (HHS had originally believed that an additional 200,00 people would be cut from coverage due to the citizenship or immigration related issues, but the number came in lower than expected). Another 580,000 people returned to the exchange after being auto-enrolled, making the total number of passive enrollments about 1.96 million, CMS reported. At the hearing, the North Carolina congressman also pressed Counihan about people who are receiving subsidies based on their 2014 income. Are there people who are auto-enrolled who are getting the wrong subsidy? Meadows asked. Under the auto-enrollment strategy anyone who failed to update their income information would still be placed in a plan, however subsidies would be based on income for 2014, not 2015. ‘Therefore, Counihan noted, if a person did not return to the marketplace to update their information, it is possible they are getting the wrong subsidy amount. But Counihan also pointed out that someone who was auto-enrolled could still return to the marketplace to update their information. While Meadows contended about 9,000 people in his district were passively re-enrolled and are receiving the improper amount, Counihan said that number may not be correct. Counihan rejected the lawmaker’s allegation that CMS is perpetrating fraud on the American people. People were notified and there was a broad communication campaign on this, Counihan said. He did not provide estimates on the number of people who were getting the 2014 subsidies for the 2015 plans. Counihan also explained to committee members that the problem affecting the 800,000 tax forms was likely caused by two codes that had an “unfavorable” interaction. Counihan said the strategy to address this and other mistakes is to identify, remediate, communicate and then move on. He also asserted that the corrected forms would be sent out in early March. Additionally, Counihan declined to speak about the administration’s potential contingency plans should the Supreme Court rule that subsidies cannot flow through the federally facilitated marketplace. The HHS secretary has spoken on this issue and “I have nothing more to say,” he told Rep. Buddy Carter (R-GA). Rep. Scott Desjarles (R-TN) pressed him later in the hearing. Do you all know something we don’t know? Are you comfortable with your answer? he asked “I’m very comfortable with the Secretary’s answer,” Counihan replied. Counihan also faced questions regarding a transfer $109 million in supplemental funds from the Centers for Disease Control and Prevention to CMS program management funds for marketplace operations. He reminded the committee that he did not start his job until last September, and said he was not aware of that funding transfer. — Amy Lotven Health Exchange Alert - www.InsideHealthPolicy.com - March 4, 2015 9 News in Brief Study: U.S. Could Learn From UK’s Cuts To LowValue Services A new study examining the United Kingdom’s success in cutting costs by reducing low-value services suggests the findings “could hold valuable lessons for the U.S. health care system.” The study says health care inefficiencies cost the United States $750 billion annually. “Given the significantly higher costs and volumes in the United States, even modest reductions in such low-value procedures could represent significant absolute savings,” the authors conclude. NHS launched an initiative to save $30 billion over two years in part by reducing the number of what it considers lowvalue procedures that are overused. The study looked at five such procedures that the government is trying to curb. These procedures include spinal surgery for lower back pain, which the authors claimed is largely ineffective, primary hip replacement, which the study said is only effective in some circumstances, and hysterectomies that treat problems with menstruation, which should the study said should only be used after trying other options. Those were compared against high-volume procedures such as gallbladder removal that were not subject to the restrictions. The results found that among ineffective procedures, myringotomy ear surgery decreased 6.7 percent, spinal surgery went down 10.2 percent and hysterectomies decreased 11.9 percent. — Rebecca Beitsch Burgess Reintroduces Health Savings Account Bill Rep. Michael Burgess (R-TX) reintroduced a bill Monday (March 2) to expand the use of health savings accounts. Burgess said the legislation aims to let individuals set aside money to help with the increasing cost of deductibles and out-of-pocket healthcare expenses. Currently, people may only purchase health savings accounts for certain insurance plans, and they’re limited by how much they may contribute. Often, the limit is much lower than their deductible, Burgess said. The bill would let people use health savings accounts more broadly. — John Wilkerson Final HHS Snapshot Shows 8.8M Enrolled Through FFM By Feb. 22 More than 8.8 million Americans in 37 states signed up for health coverage through the federal marketplace during the 2015 open enrollment period, including nearly 41,000 who came in under the wire during a deadline extension that expired Friday, HHS said Wednesday (Feb. 25) in its weekly snapshot of enrollment figures. The final count also subtracted around 90,000 customers who bought coverage in 2014 but whose plans were canceled because they failed to provide proper citizenship or immigration paperwork. CMS officials originally estimated that number to be more than twice as high, at around 200,000 people whose coverage was expected to end. HHS has not yet specified how many enrollees have paid their first month’s premium to start their coverage People can still purchase a health plan through the exchange if they have a major life event, like marriage or a change in residence, that affects their insurance. HHS said in last week’s snapshot that around 2.8 million people had signed up for health insurance in state-based exchanges as well, causing total enrollment nationwide to surpass the White House’s goal of 11.2 million sign-ups by about 200,000. HHS Secretary Sylvia Burwell expects at least 9.1 million people to effectuate and keep their plan through 2015. Anyone who claims not to have known about the tax penalty incurred for lacking coverage in 2014 until they went to file their taxes this year can also still enroll in a health plan under a special enrollment period announced by CMS Feb. 20. The SEP will run from March 15 to April 30 in FFM states, and several other states have created their own SEPs for locally run exchanges. — Rachel S. Karas Health Care Think Tank: GOP’s ACA Replacement Proposal Would Lower Costs The American Action Fund-backed Center for Health and Economy issued a report that found a bicameral GOP repeal-and-replace proposal would lower premiums, reduce the federal deficit by $534 billion between 2016 and 2025, and increase patient access to health care providers compared to the Affordable Care Act, congressional staff said in a release Monday (March 2). The draft Patient Choice, Affordability, Responsibility and Empowerment (CARE) Act, co-authored by Sens. Richard Burr (R-NC), Orrin Hatch (R-UT) and Rep. Fred Upton (R-MI), would include a premium subsidy for anyone who earns less than 300 percent of the federal poverty limit, place a cap on tax-exempt income spent on employer-based insurance and limit allotment funding design for Medicaid. “While our estimates are associated with some degree of uncertainty,” the report says, the Patient CARE Act is expected to: • Decrease the total premium cost of private health insurance coverage, with the largest impact on bronze- and catastrophic level plans. • Lead to 4 million fewer insured persons by 2025 relative to ACA expectations. “The decrease in coverage is the net effect of increased enrollment in the individual market and lower enrollment through employer sponsored insurance and 10 Health Exchange Alert - www.InsideHealthPolicy.com - March 4, 2015 Medicaid,” the report says. • Increase provider access by 5 percent for the insured population by 2025. • Increase medical productivity by 2 percent by 2025. • Decrease the federal deficit by $534 billion between 2016 and 2025 compared to current law. The Center for Health and Economy, a recent start-up led by Republican policy analyst and former Congressional Budget Office director Douglas Holtz-Eakin, also released an analysis disputing the CBO’s expectation that the ACA will lower the federal deficit over time. Billy Wynne, a Democratic lobbyist with Thorn Run Partners who worked for former Senate Finance Chair Max Baucus (D-MT) when the ACA was written, recently told Inside Health Policy he’d like to see a CBO score or other independent analysis of the proposal for a sensible view. He added that the ideas are so similar to the ACA itself that “Congress’ time would be better spent figuring out substantive ways to improve the system rather than repealing and replacing it with similar policies.” Tom Miller, a resident fellow at the American Enterprise Institute, wrote in March 2014 that the proposal — then sponsored by Burr, Hatch and former Sen. Tom Coburn (R-OK) — was not ready for prime time and fell short of the Obama administration’s budgetary targets and coverage goals. “The Burr-Coburn-Hatch proposal may suffice for political purposes as mostly an inventory of past health policy reform components offered by its primary sponsors and other Hill Republicans. However, its tentative moves into newer areas tend to lack necessary details, structural consistency, and a sustainable destination. Its vision remains tactical rather than strategic,” Miller wrote. “To replace Obamacare with health policy reform that works, rather than just keeps the greater dangers of the ACA at a distance, Capitol Hill Republican health care reformers should be advised: ‘You’re going to need a bigger boat.’” Hatch’s office said he is currently seeking input from stakeholders and lawmakers, most recently those including governors, to see if the idea gains traction. — Rachel S. Karas House E&C Questions Burwell On Exchange Back-End, CSRs House Energy and Commerce lawmakers on Thursday (Feb. 26) grilled HHS Secretary Sylvia Burwell on a number of ACA-related issues, and demanded that she submit an estimate of when back-end infrastructure work on Healthcare.gov will be completed. They also asked her for a detailed assessment on when HHS expects the 800,000 people who received faulty tax forms to have accurate subsidy information so they can file their taxes; and for specific reenrollment data on marketplace plans. Committee members also queried Burwell on HHS’ authority to administer the ACA’s cost-sharing reduction (CSR) program, in which the department sends money to health plans to compensate for reductions in out-of pocket costs for certain low-income enrollees. Regarding the back-end issues, Exchange CEO Kevin Counihan said earlier this week that work would be done in two years, which lawmakers pointed out meant that Healthcare.gov would not be fully complete until President Obama is no longer in office. Burwell at a Wednesday appropriations hearing told members that the back-end payment systems are automated and based on the system used by Medicare Advantage and Part D. She did add, however, that the system could be easier. Kentucky Republican Reps. Brett Guthrie and Ed Whitfield later questioned Burwell on HHS’ authority to implement the cost-sharing reduction program. There is no new language about cost-sharing authority included in the budget, and they do believe they have the authority to spend cost-sharing funds, Burwell said. The lawsuit being brought by House members alleges CSR payments are an “unlawful giveaway” of billions to the insurance industry because “Congress never appropriated funding for the program.” But Burwell would not elaborate further because the case is still pending. Guthrie hit back on her avoidance. “I’m just not aware of any pending litigation exception at oversight hearing questions,” he said. “Nobody’s ever been able to point to us where that appropriation language comes from and you previously had requested appropriation.” Burwell also dodged Whitfield when he asked whether the Justice Department had instructed Burwell not to answer questions about the cost-sharing reduction program, and reminded her that witnesses at other hearings spoke openly about matters related to other current Supreme Court cases. Whitfield then asked the secretary to report back with the total spent on Medicaid expansion under the ACA within seven days. Burwell wasn’t sure how to break out the amount specific to expansion, but said she could check with staff. Burwell also told the subcommittee that HHS’ civil rights office is investigating whether California’s state government forces employee health insurance plans to require enrollees to pay for abortions and contraceptives against their religious beliefs. “We take the Weldon amendment very seriously,” Burwell said. Though she did not specify when the investigation might wrap up, she added that she asked the team for “due speed” and HHS is “trying to move through that investigation as expeditiously as possible.” — Rachel S. Karas Health Exchange Alert - www.InsideHealthPolicy.com - March 4, 2015 11 Grassley, Portman Ask Burwell to Fix Subsidy Calculation, Back-End Problems Judiciary Committee Chairman Sen. Chuck Grassley (R-IA) and Homeland Security and Government Affairs Chairman Sen. Rob Portman (R-OH) chimed into the chorus criticizing HHS Secretary Sylvia Burwell for a myriad of problems with the federally facilitated marketplace, from unfinished back-end work to faulty tax forms distributed to about 800,000 Americans, and asked her in a Feb. 27 letter to address lingering issues with premium subsidy calculations. The lawmakers told Burwell to provide answers by March 13 on whether HHS is evaluating its process for estimating subsidies; whether Healthcare.gov is currently completely automated and to list all manual workarounds if not; what the process is for correcting the flawed 1095-A forms; what actions someone should take if they received an incorrect form; and whether HHS has considered allowing insurers to update information when they know a customer’s eligibility has changed. “The current methods of calculating subsides are clearly not working,” they wrote. “This has immediate negative impacts on people who now must pay money back to the IRS. It is crucial that HHS take steps to address this problem.” CMS officials announced Feb. 20 that HHS would reach out to around 800,000 consumers whose 1095-A tax forms used the wrong benchmark plan to calculate whether they qualified for subsidies toward their premium and how much that tax credit should be, leading to a total tax obligation that was too high or too low. About 20 percent of all forms mailed out were wrong, and 5 percent of those who received one had already filed their taxes with the incorrect data. CMS Principal Deputy Administrator Andy Slavitt said those people would need to wait for guidance from the Treasury Department while new forms were mailed out. HHS cited “intermittent issues” in generating the forms and is investigating the cause of the problem. And last week, exchange CEO Kevin Counihan said at a congressional hearing that back-end infrastructural work is expected to take around two years to complete. Grassley and Portman wrote that insurers say there is no automated process to receive subsidies and the Healthcare.gov site is still manually processing the tax credits used by nearly 90 percent of FFM customers. “This increases the potential for error, and is also not an effective use of taxpayer dollars,” the lawmakers said in their letter to Burwell. “Additionally, it is a direct contradiction to statements you made before Congress, saying that ‘everything is automated’ on HealthCare.gov.’” — Rachel S. Karas Top GOP Lawmakers Criticize Union Carve-Outs In Cadillac Tax Guidance Senate Finance Chairman Orrin Hatch (R-UT) and Senate Judiciary Chairman Chuck Grassley (R-IA) on Wednesday (Feb. 25) sent a letter to Treasury Secretary Jack Lew saying that an IRS guidance released Monday on the ACA’s “Cadillac tax” panders too much to organized labor unions. They take issue with a section of the guidance that asks for feedback on special adjustments given to workers in “high-risk” professions — including firefighters, law enforcement officers, electrical or telecommunication line repairmen, emergency medical workers, longshoremen, and those in the construction, mining, agriculture, forestry and fishing industries — by raising the dollar limits of how much a plan can cover before employers are hit with the Cadillac tax. The “Cadillac” tax is a 40 percent tax on plans with costs that exceed a certain threshold. It is slated to start in 2018, when the threshold is set at $10,200 for self-only coverage and $27,500 for family plans, and applies to costs expended by the employee and the employer. The law does allow for adjustments for certain plans, including those covering highrisk workers. The threshold will then be increased by CPI plus 1 for the first two years (2018 and 2019) and just CPI thereafter. In particular, Treasury wants to know how employers determine whether the majority of employees covered by a plan are in high-risk jobs, what “plan” means in that context and how employers determine whether retirees on the plan worked in those professions for at least 20 years. Treasury also asks whether further details on the definition of “employees engaged in a high risk profession” would be beneficial. The guidance also includes adjustments for qualified retirees who are not eligible for Medicare and certain employers whose employees’ age and gender are not representative of the national workforce. The guidance is based on part of the law that emerged from a deal negotiated between the White House and labor unions in 2010 that extended the original implementation of 2013 to 2018 for union plans and also allowed for higher thresholds for the high-risk professions and certain retiree plans. Stand-alone dental and vision plans were also exempted from calculations under the deal — which is also reflected in Treasury’s initial guidance. Those agreements caused unions to get back on board with passing health reform at the time. However, unions are still strongly opposed to the tax. Spokespersons with the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO) and Service Employees International Union did not return 12 Health Exchange Alert - www.InsideHealthPolicy.com - March 4, 2015 request for comment. Republicans have long opposed what they see as unfair giveaways to unions in the history of the ACA. Hatch and Grassley wrote that now is not the time to pit workers against one another with rules that protect some groups from a flawed law. “(T)he cure for this mistake is not a carve out for the President’s political supporters but a repeal that benefits all Americans, including the countless teachers, nurses, and other professionals that will be subject to this tax over time,” the lawmakers wrote. “The structure of this tax creates a draconian policy that will penalize countless Americans with a 40 percent excise tax, whether they are a shop foreman, a factory manager, or an office secretary … we urge you to work with Congress to relieve all Americans from the burdens of the health care law.” The lawmakers also asked Lew how many of the employee categories referenced in the notice are commonly performed by unionized workers, whether Treasury has considered extending the organized labor protection to all Americans, and whether the administration is considering delaying the Cadillac tax from taking effect. Lew is told to respond by March 11. — Rachel S. Karas Contrary To GOP Plans, MACPAC Wants CHIP Extended Quickly Contrary to GOP plans, commissioners on the Medicaid and CHIP Payment and Access Commission on Thursday (Feb. 26) urged Congress to renew the Children’s Health Insurance Program quickly and without fundamental changes to the program. CHIP is authorized through 2019, but funding for the program runs out in October. The latest MACPAC analysis shows states have $6.3 billion to cover the program, yet the cost is expected to be $14.8 billion. Without an influx of federal dollars, states would run out of money at various points in the year: 11 states would run out of money in the first quarter, nine in the second, 19 in the third, and 11 in the fourth. Only one state, Indiana, has enough in reserve to keep CHIP afloat the entire year. A recent report by the National Academy for State Health Policy shows a majority of states were expecting federal funding for CHIP this year and have already created budgets relying on the federal match. Commissioner Sara Rosenbaum was joined by others on the commission in expressing the need to continue the program and to do so quickly so that states have the information they need to continue the plans. “States need a very long lead time on the planning part so you can’t view it the way you might view say the SGR payment where you can keep it just a few months ahead of when it’s supposed to fall back,” she said, referring to the Sustainable Growth Rate formula that sets Medicare physician pay rates. Several other commissioners also said states need more certainty about continuation of the program beyond six months or however long an expected SGR patch might run. Rep. Tom Price (R-GA) recently said CHIP funding and a permanent SGR fix would likely be linked toward the end of the fiscal year. Some commissioners also criticized Republicans’ plan to revise the CHIP program. They said the bicameral GOP bill’s provisions on waiting periods, which would allow states to implement a 12-month waiting period for families with private insurance, would contribute to people churning through the program. MACPAC previously recommended ending waiting periods in favor of 12 months of continuous eligibility. The GOP plan also would scrap the 23 percentage point increase in federal matching for CHIP, which the Affordable Care Act slated to start in 2016. “It’s fundamentally important to keep that commitment,” said Commissioner Patricia Riley. “It’s part of the law, states planned on it, that was the deal, and as such it needs to stay that way, or we once again have invited the discussion of, ‘Can you trust the federal government?’” That funding is part of the reason states will run out of CHIP funding so quickly. States may not have allocated as much money for CHIP in 2016 because they expected the federal government to raise their matching contribution. Despite criticisms of the Republican proposal in their discussion, commissioners said they did not want to formally critique any bills on the topic, which also include proposals from Democrats in both the House and Senate that would extend the bill for four years. Instead of even recommending to extend CHIP for two or four years, the commission decided to stress the importance of continuing the program without changes because states need certainty. Commission Vice Chair Marsha Gold said it is hard to predict what language and changes would develop throughout the legislative process, so the commission should advocate general principles rather than nitpick current ideas. House and Senate Republicans jointly released a draft CHIP funding bill this week that includes major program revisions and also leaves it unclear how long the funding would be extended. The draft was unveiled by Senate Finance Committee Chair Orrin Hatch (R-UT), House Energy & Commerce Chair Fred Upton (R-MI) and health subcommittee Chair Joe Pitts (R-PA). — Rebecca Beitsch Health Exchange Alert - www.InsideHealthPolicy.com - March 4, 2015 13 Burwell Denies Knowledge Of King Contingency Plan HHS Secretary Sylvia Burwell denied knowledge of an alleged document outlining post-King contingency plans, after a key GOP lawmaker told her Thursday morning that a department official informed him of a hundred-or-so page report circulating among top HHS officials that details actions the Obama administration could take if the U.S. Supreme Court rules against it in King v. Burwell. An HHS spokesperson echoed the Burwell’s statement. “We know of no such document,” an HHS spokesperson told Inside Health Policy. “As the Secretary said, we know of no administrative actions that could, and therefore we have no plans that would, undo the massive damage to our health care system that would be caused by an adverse decision.” Energy and Commerce health subcommittee chairman Rep. Joe Pitts (R-PA) told Burwell at a hearing Thursday morning that someone within HHS made him aware of an HHS contingency document around 100 pages long, after asking the secretary if the White House has instructed HHS to outline potential contingency plans. Committee staff told IHP they have not seen the document but confirmed that they were told it was being discussed by senior HHS employees. “I’m not familiar with the document you’re referring to,” Burwell told Rep. Leonard Lance (R-NJ) at Thursday’s same hearing. “If there is this document and you know of it, I would certainly like to know.” Burwell reiterated that HHS knows of no administrative fix that could undo the harm caused if subsidies for health care premiums are removed from the federal marketplace. “We do not believe that there is any administrative authority that we have in our power to undo it,” Burwell said to Rep. Joe Barton (R-TX). Barton responded that while he believed that she hadn’t seen a contingency document, he was puzzled by the administration’s lack of planning — at least publicly — so far. Michael Cannon, health policy studies director at the Cato Institute and one of the most vocal opponents of the Affordable Care Act thus far, believes that Burwell’s decision to say HHS doesn’t “know of” a fix does not mean one does not exist. “The language they are using leaves open the possibility that they will discover a fix at some point in the future,” he told Inside Health Policy in an email. “The fact that they are so consistently using such precise language suggests they have already found that fix, and just don’t want to talk about it.” Mike Leavitt, former HHS secretary and head of the Leavitt Partners policy consulting firm, said he doesn’t know anything about the potential document but that “it would be unreasonable for them not to be doing contingency planning.” Leavitt does not expect the administration would want to talk about such a plan before the court rules. — Rachel Karas Hatch: Why Did CMS Give Issuers Termination Option If No King Back-Up Plan? Senate Finance Chair Orrin Hatch (R-UT) on Wednesday asked CMS Administrator Marilyn Tavenner to explain why the agency put a clause in its contracts with Healthcare.gov issuers last fall giving them an option to pull out if federal subsidies come to an end, suggesting the move contradicts HHS’ assertion that it has no back-up plan should the U.S. Supreme Court rule that subsidies can’t flow through federally facilitated exchanges. HHS Secretary Sylvia Burwell told lawmakers in a letter Tuesday: “We know of no administrative actions that could, and therefore we have no plans that would, undo the massive damage to our health care system that would be caused by an adverse decision.” But Hatch says CMS’ action last year suggests otherwise. “(T)he Administration’s actions behind closed doors tells a different story. While the Administration assures HealthCare.gov policyholders that ‘nothing has changed,’ it has been conveying a contradictory message to health insurance companies,” Hatch wrote to Tavenner Wednesday. The clause CMS inserted in issuers’ contracts says that the agency acknowledges the issuer has developed its products for the FFM “based on the assumption that (advanced payment tax credits) and (cost-sharing reduction payments) will be available to qualifying (e)nrollees. In the event that this assumption ceases to be valid during the term of this Agreement, CMS acknowledges that Issuer could have cause to terminate this Agreement subject to applicable state and federal law,” the contract says. Last October, CMS told Inside Health Policy that the clause had been included at the request of insurers and that both parties thought it was critical. But Hatch says that the administration accommodated insurers with this “critical” change at the same time it was telling individual Americans that “nothing has changed.” He says this suggests that the administration is “both actively engaged in contingency planning and is misleading HealthCare.gov enrollees.” The senator asks CMS to provide an explanation of why it believed the clause was “critical” by March 6. He also asks the agency to produce all documents or communications regarding that section of the contract, including the need for such language and any “requests for a new termination clause, or the risks or likelihood of (tax credits) ceasing to be available, by a Qualified Health Plan subject to the agreement.” — Amy Lotven 14 Health Exchange Alert - www.InsideHealthPolicy.com - March 4, 2015