That Was The Week That Was - Issue 49

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

Snow – it just seems that these days, every conversation begins with that word and I didn't want to disappoint you. Now, back to health policy where this week we discuss the end of open enrollment (mostly), talk of special enrollment periods, more on the subsidy case, hints that health costs may be headed back up and, as always, much more. Let’s get started.

ACA: Enrollment

The second open enrollment period (mostly) ended on February 15. Those who were “in-line” will have an extra week to complete their applications, but for the most part it’s done for the year.

HHS got the numbers out quickly, and reported that Obamacare Signups Top 11 Million In Second Year: “The Obama administration has beaten its own estimates for Obamacare enrollments, which exceeded 11 million through Sunday's deadline for most U.S. residents to choose a health insurance plan, the White House announced Tuesday.”  You can see the details for yourself here: Open Enrollment Week 13: February 7, 2015 – February 15, 2015.

What this means is that in total, Obamacare Will Cover About 19 Million People This Year “+11.4 million: confirmed signups for private coverage. -1.8 million: likely attrition rate (nonpayers, dropped coverage, etc.) +9 million: covered via Medicaid expansion”

However, There's A Potential Warning Sign In Obamacare's Great Enrollment Numbers “Most of that growth, though, was in the federally-run marketplace, which serves 36 states. Enrollment in those states increased by 58 percent from 2014 to 2015, according to an initial analysis by Avalere Health, an independent consulting firm. In the state-run exchanges, enrollment grew by a much more modest 9 percent.”

Here in Maine we saw another very successful enrollment period as Nearly 75,000 Mainers enroll under Obamacare. During the last week of open enrollment, 8,674 people were signed up, over four times as many as the previous week. This put Maine at number 4 with respect to percent of eligible population enrolled and number 2 for states using healthcare.gov: Marketplace Enrollment as a Share of the Potential Marketplace Population. The entire state owes the Navigators, Assistors and MeHAF a round of applause for all the great work they did to bring health care to tens of thousands of Mainers.

  

ACA: Special Enrollment Periods

While there will be a brief (one week) extension for those who did not complete their applications by the deadline (but who in some way began them), talk has already started regarding a new special enrollment period: Extra Obamacare Sign-Up Time Mulled to Help Taxpayers Avoid Fine “The Obama administration is considering an extra Obamacare enrollment period for tax filers who learn they owe a fine for not carrying insurance last year, to give them a chance to avoid even heavier penalties in 2015. “You’re going to hear from us, one way or another, within the next two weeks on whether that’s something that we would do,” Health and Human Services Secretary Sylvia Mathews Burwell said Friday. “It’s an issue that’s been raised.””

The idea is that when an individual who has not yet signed up for coverage completes their taxes, finding out they have to pay a penalty for 2014 is a great opportunity to have them sign up for 2015 coverage. Forgive the term, but this would be a “teachable moment” since many of the uninsured are still not aware: Many Uninsured Adults Were Not Aware of Tax Penalties for Not Having Coverage, the Marketplaces, or the Open Enrollment Deadline “Many nonpoor adults who were uninsured as of December 2014 had heard little or nothing about the penalty, were unaware of the February 15 deadline to obtain coverage through the Marketplaces, and did not know if they would be subject to a penalty for not having coverage in 2014.”

Among those putting forward the idea of a special enrollment period are Senate Dems: Senate Democrats Lobby for a Reprieve for Some Who Failed to Get Insurance “Senator Tammy Baldwin, Democrat of Wisconsin, and other senators said the Obama administration should provide extra time so that uninsured people who pay the penalty for 2014 could enroll in health plans after the Sunday deadline, thus avoiding the higher penalties for 2015.”

Joined by Maine’s own independent Senator King: Maine Senator Seeks Second Chance for Those Facing Health Care Penalty “Maine-based-health policy consultant Mitchell Stein says the numbers add up quickly - for a family of four, the minimum penalty next year is $975. "It makes it even more important that we give those folks an opportunity to avoid those 2015 penalties, once they see they've been assessed a 2014 penalty," Stein says.”

And today the idea was endorsed by the NY Times Editorial Board: When One Penalty Is Enough “The government should open a special enrollment period that lasts beyond April 15, the traditional filing time for most taxpayers. That would be fair to millions of consumers who remain uninformed about the health care law and ignorant about the subsidies it provides and the penalties for failing to enroll.”

Of course, there are some dissenters: Why Extending Obamacare's Deadline Might Backfire “Giving people another two months to enroll for coverage would raise the risk for insurance companies that some people will wait to buy insurance until they need it. That's called adverse selection, and it's why health plans have limited open enrollment windows to begin with. If you could buy coverage all year round, some people would wait until they get sick to sign up, and there might not be enough healthy people paying into the risk pool to cover the costs.”

I disagree with this piece (but include it here in the interests of balance). A special enrollment period for just this year and just for people who find they are assessed a penalty for 2014 would help increase enrollment of healthy people. We need to realize we are still in a transition period and should take advantage of these one-of opportunities to continue to get the word out and increase enrollment.

However, I don’t agree with those who are pushing for pregnant women to be allowed to sign up for coverage at any time of the year: Advocates Want Obamacare Available To Pregnant Women Any Time  “But advocates complain the special insurance enrollment period begins only after a birth. As a result, uninsured women who learn they are pregnant outside of the regular three-month open enrollment period, which this year ended Sunday, can get stuck paying thousands of dollars for prenatal care and a delivery — or worse, going without  care.” 

The reason for a defined open-enrollment period is to prevent adverse selection, or as I like to put it, to avoid the “back of the ambulance” enrollment – we need to minimize people only getting coverage when they need to use it. Insurance works when everyone pays in over time so that when services are needed, the money is available. If you were to say that getting pregnant would qualify you for special enrollment, why wouldn’t you say getting cancer qualifies you?  If you allowed either of these it means there would not be reason to sign up for coverage before you need it.

If we had a different system, we would not worry about such things because everyone would always be covered, but in today’s reality we have to make the current system work, allowing a special enrollment for pregnancies would undermine the system. I’ll end by noting that enrollment in Medicaid is NOT subject to an enrollment period. Those among us most at risk can get coverage at any time. But for the private insurance market to function, we need to keep adverse selection to a minimum.

ACA: Opposition

One of the continuing lines of criticism of the ACA is the impact the law will have on businesses. Well, Bloomberg took a detailed look and found that Obamacare Is Barely Causing a Ripple in Corporate America “The Patient Protection and Affordable Care Act -- otherwise known as Obamacare -- is putting such a small dent in the profits of U.S. companies that many refer to its impact as “not material” or “not significant,” according to a Bloomberg review of conference-call transcripts and interviews with major U.S. employers.”

Building on those results, Vox took a look at 8 ways Obamacare has proved its critics wrong.

ACA: Court Cases

We’re two weeks out from oral arguments on the subsidy case (3/4). Coverage is heating up, sometimes in unusual ways…  Remember those “choose you own adventure” books?  Well National Journal has created one for the subsidy case by posting mirror articles at the same time with opposite titles:

Why Obamacare Will Lose “The central issue in King is the formula for calculating Obamacare's premium subsidies. The law says the payments are tied to coverage through an Exchange "established by the State." The challengers say that line means subsidies are only available in states that set up their own marketplaces—not in the 34 states that punted the task to the federal government. "The fear is going to be that the court is going to read these four words in isolation," said Abbe Gluck, a law professor at Yale University who sides with the Obama administration in the case.”

Why Obamacare Will Win “The challengers in King likely will have a hard time convincing five justices that the real-world effects they are advocating are what Congress actually had in mind when it wrote Obamacare. And if they can't persuade the court that their reading is clearly, unambiguously correct, the administration's interpretation could win by default.”

My interpretation of what they've done is that as of now, the outcome of the case is a coin-flip.

We also saw more discussion on the standing issue with two pieces from Nicholas Bagley reviews the issue and looks at implications for the case:

Do the plaintiffs in King have standing to sue? “The latest fracas in King is about standing. …  The stakes are high: if the plaintiffs lack standing, the Supreme Court has no jurisdiction and should dismiss the case outright.”

Cleaning up the standing mess in King. “Indeed, to the extent that unanticipated standing problems have arisen, the King lawyers have an ethical obligation to do so. As the Court has said, “[w]hen a development after this Court grants certiorari … could have the effect of depriving the Court of jurisdiction due to the absence of a continuing case or controversy, that development should be called to the attention of the Court without delay.””

However for all the focus on this issue : “There’s no guarantee that the Supreme Court, in itching to reach the merits of King, won’t turn a blind eye to its own rules on who's allowed to get their foot in the courthouse door.” (The Supreme Court Could Dismiss the Obamacare Lawsuit Over This One Legal Quirk)

With the close of open enrollment, it’s now possible to estimate the dollar impact an adverse decision would have, and it’s large: A SCOTUS decision against Obamacare could cost states billions and billions of dollars “We’re talking about enormous amounts of money: Florida could lose nearly half a billion dollars per month in subsidies to its constituents. Texas could lose a quarter of a billion dollars per month. North Carolina and Georgia could each lose over one hundred million per month.”

While the Feds are keeping quiet on what contingency plans they may have, some states are weighing their options – including Maine: Obamacare rescue ruled out by some states, others weigh options “"A state-based exchange from scratch in six months is probably not doable. We're trying to see what other states are doing and what may work and may not work," said Eric Cioppa, Maine's leading insurance official.”

And a reminder of something we've discussed before. If subsidies are eliminated, it effectively eliminates the employer mandate as well: SCOTUS Case Would Gut Obamacare Even More Than You Think “"Penalties on employers that don’t offer coverage to their workers are only triggered if one or more of their workers receive subsidies in a marketplace," Levitt said. "If there are no subsidies, there are no employer penalties."”

ACA: Marketplaces

While this open enrollment period went smoothly for most consumers, a look at how it’s not going as smoothly behind the scenes: Behind the curtain, troubles persist in HealthCare.gov “Even though consumers had a largely smooth enrollment experience this year, the fact that these gaps persist behind the scenes 18 months after HealthCare.gov launched shows that the system is still not working as intended. Instead of a swift process, health plans use clunky workarounds and manual spreadsheets. It takes time and it costs money.”

Some focus this week on the great work Andrea Irwin and CAHC are doing as Maine’s Consumer Assistance program: Denied an Insurance Claim? Consumers Get Federal Help Under ACA “But Irwin says consumers shouldn't shy away from appeals. "Probably at least 70 percent are worth pursuing an appeal that get denied."”

ACA: Other

In a parallel universe, we are spending our time trying to improve the ACA and focusing on issues of affordability instead of continuing to worry about its very existence. But since we’re not in that world, all we can do is recognize the issues and hope that we will get to the point where we can fix them:

Even Insured Consumers Get Hit With Unexpectedly Large Medical Bills “Because the issue is complex and pits powerful rivals against one another— among them, hospitals, doctors and insurers— relatively few states have addressed it. What laws do exist are generally limited to specific situations, such as emergency room care, or certain types of insurance plans, such as HMOs.”

Out of Pocket, Out of Control “Copayments -- those predetermined charges you pay at the doctor's office -- are a big part of the problem. In recent years, they've risen to the point where they no longer work as they're meant to.”

Tim Jost has had a busy week, here are his latest posts covering everything from tax forms to enrollment numbers:

• Implementing Health Reform: Enrollment Figures, Tax Forms, And More
• Implementing Health Reform: Excepted Benefits, Employer Mandate, And Cost-Sharing Reduction Payments
• Implementing Health Reform: Open Enrollment Closes, But Doors Remain Ajar
• Implementing Health Reform: Preliminary 2015 Enrollment Numbers; Guidances

Costs

Regular readers may remember that we’ve tried to express a note of skepticism to some of the claims of bending the cost curve. While it is clear the ACA was having some impact, it was unclear the relative weight of that impact vs. the impact of the recession.

Some new data this week showing that the recession was playing a significant role as U.S. Health-Care Spending Is on the Rise Again “The jump in health spending for 2014 wasn't unexpected. Millions of Americans have now gained health insurance through the Affordable Care Act exchanges, expanded state Medicaid programs, and jobs created by employers. "All three together are driving the coverage and presumably the spending," says Altarum senior economist Paul Hughes-Cromwick. The federal government had anticipated that the spending slowdown would end in 2014, projecting total health care spending growth of 5.6 percent.”

But as we note this increase in overall spending, let’s also note the difference between total spending and cost of services. While it was inevitable that overall spending would rise as more people enter the system, if prices can be kept down it will bode well for the future. As of now, that still seems to be the case: “The prices Americans pay for health services are a big problem, but the culprit behind the renewed growth we are seeing in spending is not the rising price of health services.” (Health Spending Is Rising More Sharply Again)

Medicaid

Not expanding Medicaid isn’t enough for our Governor. LePage wants to also eliminate coverage for 19 and 20 year olds. However HHS says doing so would violate the ACAs Maintenance of Effort provision. Not happy with that response, LePage asks U.S. Supreme Court to review Medicaid case “In a petition for writ of certiorari, LePage’s administration asks the U.S. Supreme Court to review the decision of the 1st U.S. Circuit Court of Appeals, which ruled in November that the federal government was correct in rejecting the governor’s plan to eliminate coverage for the 19- and 20-year olds.”

It’s been a two-steps forward, one step back month when it comes to Medicaid Expansion in other states, here is a look at what has actually been approved: The ACA and Medicaid Expansion Waivers “This brief provides an overview of the role of Section 1115 waivers in expanding coverage since the enactment of the ACA. The brief also highlights key themes in these waivers including implementing the Medicaid expansion through a premium assistance model, charging premiums, eliminating certain required benefits (most notably non-emergency medical transportation), and using healthy behavior incentives as well as provisions that CMS has not approved.”

And while last week the Wyoming Senate rejected expansion, Wyo. House Speaker says Medicaid dispute not over “A top Wyoming lawmaker says the debate over whether to expand the federal Medicaid system in the state this year isn't over yet. House Speaker Rep. Kermit Brown, R-Laramie, said House members will bring up amendments to a budget bill this week seeking to expand Medicaid to offer insurance coverage to thousands of low-income adults.”

Medicare

Medicare Advantage plans are back in the news, and once again, not in a good way. One of the ongoing debates is can these plans provide coverage more efficiently (cheaper) than traditional Medicare. (Many of us are skeptical.) One of the factors that help determining the answer is the risk score for the plan – that is a measure of how sick the people covered are so adjustments to expenses can be made. This week two examples that raise questions regarding are the risk scores the plans reporting correct:

Fraud Case Casts Spotlight On Medicare Advantage Plans “A federal grand jury in West Palm Beach, Fla., indicted the doctor, Isaac Kojo Anakwah Thompson, on eight counts of health care fraud on Feb. 4. He's accused of cheating Medicare out of about $2.1 million by claiming his Humana-enrolled patients were sicker than they actually were. Thompson, 55, was arrested and is free on a $1 million bond. Through his lawyer, he declined comment. … Medicare Advantage plans are paid a set fee monthly for each patient based on a complex formula known as a risk score. Essentially, the government pays higher rates for sicker patients and less for those in good health. But overcharges, intentional or not, have cost taxpayers billions of dollars in recent years, as the Center for Public Integrity reported in a series published last year.”

Justice Department probing Humana's Medicare risk adjustment “The government is seeking to find out more about Humana's risk-adjustment data, including diagnoses from providers in that lawsuit, and how the insurer monitors risk-adjustment compliance.”

Also this week “A Wall Street Journal analysis found that many long-term-hospital companies discharge a disproportionate share of patients during that window when hospitals stand to make the most, a sign that financial incentives in the Medicare system may shape patient care.” (Hospital Discharges Rise at Lucrative Times) Unfortunately, another example of the “free market” leading to suboptimal results regarding cost and care.

Drugs

Sovaldi brought the cost of new drugs to everyone’s attention. But that was just the beginning. New cholesterol treatments could be even more problematic, resulting in this development: CVS urges cost controls for new cholesterol drugs “Two of the new injectable cholesterol treatments, called PCSK9 inhibitors, could gain U.S. approval this summer. CVS said they could eventually be used by as many as 15 million patients at an annual cost of up to $150 billion a year if priced at $7,000 to $12,000 a year, making it the highest-selling class of drugs in history.”

On a positive note, a New Approach to Blocking H.I.V. Raises Hopes for an AIDS Vaccine “A new compound has blocked H.I.V. infection so well in monkeys that it may be able to function as a vaccine against AIDS, the scientists who designed it reported Wednesday.” So far this is just animal studies but it potentially could be a huge game changer.

And on a less positive note, UCLA Says More Than 100 May Have Encountered 'Superbug' “A potentially deadly "superbug" resistant to antibiotics infected seven patients, including two who died, and nearly 200 others were exposed at a Southern California hospital through contaminated medical instruments, UCLA reported Wednesday.”  As a result of this outbreak, FDA issues endoscope warning following superbug outbreak.

But this is just one example of antibiotic resistance. Here is What a world without antibiotics could look like — and how to prevent it “"It’s almost unimaginable," said Professor Kevin Outterson, of Boston University School of Law, "how going back to a pre-antibiotic era would affect US health care."”

System Transformation

My vote for this week’s worst headline for a great article (remember, reports rarely get to write their own headlines): Doctors Strive to Do Less Harm by Inattentive Care No, they are not using “inattentive care” to do less harm (that’s how I took it the first time I read it), it is the “inattentive care” they are trying to stop: “The effort is driven partly by competition and partly by a realization that suffering, whether from long waits, inadequate explanations or feeling lost in the shuffle, is a real and pressing issue. It is as important, says Dr. Kenneth Sands, the chief quality officer at Harvard’s Beth Israel Deaconess Medical Center in Boston, as injuries, like medication errors or falls, or infections acquired in a hospital.”

A great video helps us understand differences in life expectancy: Healthcare Triage: How long are you going to live? Understanding has implications not only for medical care but for social policy as well (particularly relevant to discussions of changing the social security eligibility age).

Remember, improving medical care involves the whole organization: In Hospitals, Board Rooms Are as Important as Operating Rooms “”I’m a much better doctor in a well-managed hospital where the systems are in place to help me do my best work,” Dr. Jha said. “Even a great chef can’t produce a good omelet with eggs that are stored in the freezer or the stove doesn’t work reliably.””

And finally this week, more on the right-to-die debate: NPR host Diane Rehm emerges as key force in the right-to-die debate “For Rehm, the inability of the dying to get legal medical help to end their lives has been a recurring topic on her show. But her husband’s slow death was a devastating episode that helped compel her to enter the contentious right-to-die debate.”  Are we as a country ready for this debate? I hope so but I have my doubts.

All comments and suggestions are welcome; please let me know what you think. And as always, thanks for reading!

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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"