Thursday, July 3, 2014

That Was The Week That Was - Issue 17

A look back at the week's health policy news with a focus on ACA implementation


NOTE I'VE UPDATED THIS POST ON JULY 4, 7AM WITH A NEW PARAGRAPH AT THE END OF THE HOBBY LOBBY SECTION COVERING THE SUPREME COURT'S ORDER RE WHEATON COLLEGE v. SYLVIA BURWELL, SECRETARY OF HEALTH AND HUMAN SERVICES, ET AL.


The big story of the week was the Supreme Court Hobby Lobby decision.  We'll start off with a special section on the case.  Following that we'll take a look at the rest of this week's news in my normal format;  including a report stating that 20 million individuals have health coverage because of the ACA, more premium previews, Medicaid expansion news and of course much, much more.

Hobby Lobby

The Basics
On Monday June 30 in a 5-4 ruling the Supreme Court ruled that Hobby Lobby, a "closely held" corporation, had the right to a religious objection to the ACA birth control coverage mandate (Supreme Court Rejects Contraceptives Mandate for Some Corporations).

The ruling said that based on the  Religious Freedom Restoration Act (RFRA, signed by President Clinton in 1993) a closely held corporation (defined as having 50% or more of its stock owned by five or fewer people) could be exempted from the ACA requirement that health coverage include no cost sharing birth control as part of their coverage and so did not have to provide that benefit to their employees.  Note that the decision was based on a law passed by Congress and did not address any constitutional questions.

There was disagreement between the majority opinion and the decent as to how wide ranging the ruling is.  The New York Times does a good job of quoting the relevant parts of the documents: Between the Lines of the Contraception Decision.   This is as good a place as any to provide the link to the full decision:  BURWELL, SECRETARY OF HEALTH AND HUMAN SERVICES, ET AL. v. HOBBY LOBBY STORES, INC., ET AL.

Kaiser Health News prepared this FAQ document:  FAQ: High Court's Hobby Lobby Ruling Cuts Into Contraceptive Mandate. 

It is worth noting that the ruling did not overturn any aspect of the Affordable Care Act, it also did not question the requirement that birth control be provided by plans with no cost-sharing.  What it did was say that some employers can refuse to pay for that part of the coverage due to their religious objections.

Below I will cover several aspects of the decision, but please note that the "sections" are an imperfect artifact and so there is overlap between them.  I will also examine the decision with

Before proceeding, I'll pause to say that I personally am appalled at the decision.  It puts an individual's employer in the position to make decisions regarding their employees health care.  We'll see below that while the short-term impact will probably be minimal, it shows a obtuseness on behalf of the court as to what they are actually saying.  (That's the most restrained way I can phrase what I'm really thinking.)  I will also take some time to highlight one way of looking at the majority decision - namely that it comes from a limited male-based perspective.

What Happens Now?
The first question is what happens now?  Certain religious organizations (such as churches) already have the right to a partial exemption from the same birth control coverage requirement.  In fact, the majority opinion states that the work-around already in place can be used here so that the employees of these firms are not denied the benefit (What the White House Can Do Now on the Contraception Mandate).  It is very likely that this same approach will be used (at least initially) for these employees.  However, as discussed in the previous link there are already objections to that work-around winding their way through the courts (a bit more on that below).  The other alternative mentioned by the Court, a legislative solution, is highly unlikely given the current political environment.  You can read a description of how the existing exemption works here:  Religious Exemptions to Contraceptive Coverage.

In Maine the pool of employers who can object is smaller than in many other states.  That is because insured plans sold in Maine are subject to a state mandate requirement them to offer contraceptive coverage (Contraception ruling likely to have little immediate effect in Maine),although self-funded plans are not subject to that requirement.   The RFRA is a Federal law that in this instance does not preempt the state requirement.  A state version of RFRA was proposed during the previous legislative session but it did not pass (Maine House deals another blow to Republican senator’s ‘religious freedom’ bill).

Differing views of impact
As alluded to above, the dissent written by Justice Ginsburg worries that the majority opinion opens a Pandora's box of future exemptions: How Justice Ginsburg’s Hobby Lobby dissent helps shape the debate about reproductive vs. religious rights.  That said, others see the ruling as more limited: Court Suggests Narrow Application Of Birth Control Case, But Others See Broader Impact.  More seeing concern over possible broad impact: Gay rights groups wary of Supreme Court's Hobby Lobby ruling and more seeing in fact bad news for certain cases winding their way through the courts: Hobby Lobby Win Could Spell Trouble For Religious Nonprofits.

Corporate Personhood
In the age of Citizen United, it is common to bemoan rulings that seem to affirm that corporations are people and have rights.  But it's important to get into the weeds and understand that this has always been the case.  If there was no such thing as corporate personhood you could not enter into a contract with a corporation.  This piece lays out some of the common myths:  5 mistakes liberals make about corporate personhood and Hobby Lobby.

Birth control
Missing in some of the discussion is that often, birth control is not being used as contraception: For Me, Birth Control is Medicine First, Contraceptive Second - Issues other than sex rarely come up when we talk about birth control, but that is only part of the picture.   That when it is used as contraception it has far reaching impacts: Social and Economic Benefits of Reliable Contraception - Why providing women more options to control pregnancies is in the interest of everyone.  As we enter those waters, we can also ask why the continued need for a prescription: Seven reasons birth control pills shouldn't require a prescription.

Misogyny?
"The majority opinion is largely about the rights of corporations, employers and those with religious beliefs; the dissent is very much about women — about their health, the sums they spend to access care and the costs they pay when none is available." (The 49-page Supreme Court Hobby Lobby ruling mentioned women just 13 times)

Am I using too strong a term for this section?  I'll leave it to the reader to decide.  To quote Neil Gaiman as he was treating about #yesallwomen "...I can empathize & try to understand & know I never entirely will."  I think the conversations that led to #yesallwomen hashtag are instructive in understanding the context of this decision: Why #yesallwomen is the most important thing you'll read today.   

For those who continue to wonder at the pervasiveness of these attitudes I'll point out that in this day and age, Women are a minority in every state legislature in America.  On the culture front,  Half of 2014's movies fail this basic test of sexism.  Before getting back to the court case under discussion, I'll add this inspiring argument that Yes, All Men (should be feminists).

Politics
The above section, along with the case in general, inevitably has political implications.  It is A Ruling That Both Sides Can Run With.  And while Democrats pick up GOP tactic: Campaign against Supreme Court on a broader scale, there are those who say that To Hold Senate, Democrats Rely on Single Women and that this will be one of their motivations to vote.

Court cases to come
As mentioned above, there are objections to the work-around that has already been made for religious organizations.  There are several cases winding their way through the courts saying that the work-around is itself too onerous a burden as it makes the organization complicit in providing contraceptive coverage (by filling out a form saying they object to providing coverage).  As I write this on Thursday morning (7/3) we are waiting for the Court to decide about an injunction in a case before a lower court.  You can read about it here: U.S.: Don’t expand Hobby Lobby exemption.  It will be an opportunity to get more of a sense if the tea-leave readers are correct.  Did The Supreme Court Tip Its Hand On Contraception Cases Yet To Come? Those who say yes read the tea leaves as saying that the work-around will be upheld by the court.  The math is that all the four who voted against the decision would join with Kennedy who wrote positive things regarding the work-around.  Stay tuned because the one thing we can say for certain is The birth control fight isn’t over.

The big picture
I spend my days worrying (obsessing?) about the practicalities of our existing system and on incremental changes that will help. Ultimately, we will need fundamental change to make this all work.  This case highlights the fact that when that point arrives, removing the connection between employers and health coverage clearly needs to be part of that change:  Hobby Lobby decision shows we need to get rid of the employer-based health insurance system and The Illogic of Employer-Sponsored Health Insurance.  Although a cautionary note that as always we'll need to be careful what we wish for: Hobby Lobby shows why single payer could hurt reproductive rights


ADDED JULY 4:
Wheaton College
"“Those who are bound by our decisions usually believe they can take us at our word,” Justice Sotomayor wrote. “Not so today.”

In an apparent contradiction of the majority opinion in Hobby Lobby, the court ruled, albeit in a temporary injunction technically applying to only the plaintiff, that the Administration's accommodation for how religious institutions can opt-out of providing birth control still infringed on their rights.  For a brief summary, see the NY Times story: Birth Control Order Deepens Divide Among Justices

For a more complete review of the court's order, see the SCOTUS blog piece: Broader right to object to birth control.

You can find the full order here:  WHEATON COLLEGE v. SYLVIA BURWELL, SECRETARY OF HEALTH AND HUMAN SERVICES, ET AL

END OF ADDED SECTION


Now on to the rest of the week's news.

ACA: Enrollment numbers/Polls
A new report out indicates that 20 Million Americans Get Insurance Under Obamacare, Report Says.  One of the reasons to like this number is that it provides an updated estimate for the number of individuals under 26 who have coverage on their parent's plan because of the law.  Previous estimates used the optimistic 3 million while this report uses the more credible 1 million number.

 "Taking into account all the health insurance expansions initiated by the Affordable Care Act (ACA), an estimated 20 million Americans have gained coverage as of May 1, 2014. These include young adults who gained coverage under parents’ policies, people who bought plans in the marketplaces, individuals who purchased coverage directly from insurers, and adults and children who enrolled in Medicaid or the Children’s Health Insurance Program." (Health Care Coverage Under the Affordable Care Act—A Progress Report Primary Source).

This week Kaiser released tracking poll numbers (Kaiser Health Tracking Poll: June 2014).  While there was not much change in public perceptions, they focused questions this month on Wellness programs (Poll: Americans Bristle At Penalties In Wellness Programs). 

ACA: Marketplaces
More news this week on the eligibility problems regarding subsidies as the HHS Inspector General issued a report indicating that HHS can't tell if all people getting Obamacare subsidies are supposed to be eligible.  (Not All Internal Controls Implemented by the Federal, California, and Connecticut Marketplaces Were Effective in Ensuring That Individuals Were Enrolled in Qualified Health Plans According to Federal Requirements Primary Source).

Also another analysis from Avalere (who have provided tremendous insight with their various reports over the past several months).  This one reminding us again of the importance of comparison shopping.  In this case when it comes to the cost sharing subsidy available for some people.  Remember, for those qualifying, they basically get a different plan with different cost-sharing amounts.  But all the plans do not make their adjustments in the same way.  For example, one adjusted plan could have a lower deductible and higher drug copays than a second plan and yet both have the same adjusted actuarial value  (Avalere Analysis: Cost-Sharing Reductions Unevenly Applied Across Services in Exchange Plans).

More noise regarding adding an additional tier to the metal plans, this one would be "copper".  Given the calendar this could not happen for 2015 but the issue bears watching as these plans would have very high cost sharing amounts for all services (Proposal To Add Skimpier ‘Copper’ Plans To Marketplace Raises Concerns).

More premium news continues to come out, some not great numbers from NY: Insurers on New York State’s Health Exchange Seek Significant Rate Increases (although the article stresses these are preliminary filings and the increases don't take into account subsides) and some better numbers from Georgia:  An early, encouraging glimpse of 2015 rates.

ACA: Other
In one of her first public appearances since leaving HHS, the former Secretary admitted she did not focus enough on technology:  Kathleen Sebelius: I 'made some mistakes'.

While attention was focused on the Supreme Court and the Hobby Lobby decision, another potentially more harmful case continued to make its way through the courts.  Decision Looms In Lawsuit That May Actually Crush Obamacare.  This is the one challenging the ability of the Federal Marketplace to offer subsidies.  At first many of us laughed when this case was first introduced, but it continues to progress.  It would not be surprising if it made its way to the Supreme Court in their next session.

VA
Former head of Proctor & Gamble will be nominated as the new head of the VA (Barack Obama taps ex-Procter and Gamble exec Robert McDonald to lead VA).  While he is an unusual pick and  had some issues before leaving P&G (V.A. Nominee McDonald Faced Criticism at Procter & Gamble) some say his corporate management experience is just what is needed to get the VA into shape (What Bob McDonald could bring to Veterans Affairs).

Also this week another resignation: After Criticism, Investigator Steps Down From the V.A..

And while not directly related, the VA issues have led to renewed focus on care provided to active duty military.  The New York Times investigated and found In Military Care, a Pattern of Errors but Not Scrutiny.

Medicaid
A report out about the MISSED OPPORTUNITIES: THE CONSEQUENCES OF STATE  DECISIONS NOT TO EXPAND MEDICAID (Primary Source).
And developments in several states regarding expansion: 

Drugs
A disturbing look at the price of vaccinations: The Price of Prevention: Vaccine Costs Are Soaring.  And a look at The Crazy Way the Government Buys Billions of Dollars of Drugs.

System Transformation
Speaking of vaccines, we didn't need more proof but we get it anyway as A review of 166 independent studies confirms vaccines are safe and effective.  And on the topic, this week's comic video selection:  Who are the vaccine denialists? Hint: It’s not who you think.

Disagreement between The American College of Physicians and The American College of Obstetricians and Gynecologists as the first group came out with recommendations that Healthy women do not need routine pelvic exams, influential physicians group says.  The second group quickly came out with a statement saying yes they do.  In either case, note that they are talking about Pelvic Exams, not the need for regular Pap smears (Not So Fast, Ladies: Annual Pelvic Exams May Be Unnecessary, But You Still Need Pap Smears).

Positive news in this look back at What the Reduction in Tonsillectomies Teaches Us About Medicine. Although Waste, errors in health care remain huge issues, experts agree.

Great work from the Commonwealth Fund as they released A State Policy Framework for Integrating Health and Social Services.

While Medical Boards Draft Plan to Ease Path to Out-of-State and Online Treatment, a look at How telehealth is shaping health care.

And finally, Robert Pearl, CEO of The Permanente Medical Group asks the question Why do we think more care is better for us? (when we know that often it is not).



All comments and suggestions are welcome; please let me know what you think.  And as always, thanks for reading!
Funded by support from the Maine Health Access Foundation
*The title is a tribute to the BBC show, the NBC show and the amazing Tom Lehrer album "That Was The Year That Was"
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