Highlight on Maine: addressing seniors, aliens, diabetes, dental health care

Maine has experienced highs and lows in its delivery of health care in the first half of 2015. It has improved its ranking in the nation in terms of care provided to seniors and on seven measures of a health care index report, but it ranks low in dental health care. To help with those dental statistics, Maine received a grant from HHS targeting children’s dental health. Maine also embarked on a diabetes prevention program. Finally, the Maine Superior Court ruled in favor of the Maine Department of Health and Human Services (DHHS) denying General Assistance welfare reimbursement for claims municipalities paid to nonqualified aliens.

Senior health care ranking

Maine is ranked the 11th healthiest state overall for adults aged 65 and older, up from 14th in 2014. It ranked first in the nation for clinical care, according to the third annual Senior Report released by America’s Health Rankings®. The Senior Report provides a comprehensive analysis of senior population health on a national and state by state basis. According to a news release from MaineHealth, an accountable care organization and integrated not-for-profit health care system of providers and other health care organizations working together in their communities, clinical care includes seniors receiving care for heart attack, heart failure, pneumonia, and surgical procedures.

The Senior Report identified Maine’s strengths as follows: (1) high percentage of quality nursing home beds, (2) low percentage of low-care nursing home residents, and (3) low intensive care unit use. Challenges include: (1) low percentage of dental visit, (2) low prescription drug coverage, and (3) high prevalence of full-mouth tooth extraction. Highlights of senior health care in the past year include that: (1) obesity increased from 25.9 percent to 27.2 percent of adults aged 65 and older; (2) pain management decreased from 50.7 percent to 42.9 percent of adults aged 65 and older with joint pain; (3) community support increased from $525 to $639 per adult aged 65 and older in poverty; (4) home health care increased from 106.3 to 137.4 home health care workers per 1000 adults aged 75 and older; and (5) premature death decreased from 1902 to 1692 deaths per 100,000 adults aged 65 to 74.

Diabetes prevention

The Maine Center for Disease Control (CDC) is targeting diabetes prevention at 16 sites across the state that are delivering the National Diabetes Prevention Program, a year-long lifestyle change program designed to help participants decrease their risk of developing Type 2 diabetes, the Maine DHHS reported on June 11, 2015. The Maine CDC noted that less than 7 percent of Maine adults have ever been told they have pre-diabetes (higher than normal blood sugar) even though the United States Center for Disease Control estimates that one of every three adults has this condition. In 2014, 800 Mainers completed the prevention program in which a lifestyle coach works with small groups of individuals to support life style changes such as changing eating habits, managing stress, staying motivated, and increasing physical activity. Data shows that those who have completed the program reduced the likelihood of developing Type 2 diabetes by 58 percent, and many experienced weight loss and a drop in blood pressure.

Children’s oral health

On July 24, 2015, MaineHealth announced that HHS had awarded the health care organization a grant to improve children’s oral health across the state in the amount of $250,000 per year for a total of $1 million over four years. Maine is one of eight states to receive this funding. The grant expands access to oral health care through the From the First Tooth initiative to include pregnant women and enhance the focus on establishing early dental care for babies. From the First Tooth, which is led and administered by MaineHealth in partnership with MaineGeneral Health and Eastern Maine Healthcare Systems (EMHS), is a statewide effort to integrate oral health into primary care delivery systems through early interventions by pediatricians and family physicians. Kneka Smith, MPH, Director of From the First Tooth at MaineHealth, noted that, “tooth decay is one of the largest health problems impacting Maine children.”

Health Index Report

MaineHealth, released its fifth annual Health Index Report on March 25, 2015. The report, which is released in conjunction with the Robert Wood Johnson Foundation’s County Health Rankings, an annual report that compares the overall health of almost every county in the United States, provides community health data specific to Maine. According to MaineHealth, the rankings compare counties on 30 factors that influence health including education, housing, violent crime, jobs, diet, and exercise. The rankings indicated that Sagadahoc is the healthiest county in Maine and Somerset is the least healthy county. The rankings also showed that Oxford County had the most improved health outcomes in the state. The Health Index Report tracks progress on seven high priority issues that have a major impact on Maine’s overall health status, including: childhood immunizations, tobacco use, obesity, preventable hospitalizations, cardiovascular deaths, cancer deaths, and prescription drug abuse and addiction. Key findings in the 2014 report specific to Maine include:

  • up-to-date immunization rates at MaineHealth practices increased from 77 percent in 2012 to 80 percent in 2014;
  • Maine’s youth smoking rate was 13 percent in 2013 versus the 2011 rate of 15.5 percent;
  • 58 percent of Maine’s adult smokers have made a serious attempt to quit in the past 12 months;
  • 78 percent of Maine fifth graders drank zero sugary beverages per day in 2013–an increase of 9 percent since 2009; and
  • In 2010-2012, Maine’s rates for overall cardiovascular death, as well as rates for heart disease, coronary heart disease and heart attack, were significantly lower than the U.S. rates.

The report identifies opportunities for community health improvement and describes how the MaineHealth system and its partners are addressing the high priority issues through clinical, community, and policy strategies.

Welfare to illegal aliens

On June 9, 2015, the Maine Superior Court, issued a ruling that the Maine DHHS cannot withhold all General Assistance funds from municipalities that give the funds to immigrants seeking asylum until the agency follows state law that outlines how rules may be changed; however, the state does not have to reimburse cities and towns for the aid that they give to asylum seekers, Judy Harris reported in the Bangor Daily News. “DHHS has no statutory or regulatory authority to penalize municipalities for noncompliance with DHHS instruction or directive relating to persons who DHHS deems ineligible for general assistance,” according to the opinion. Finally, the court concluded that until the state legislature enacts laws that allow asylum seekers to receive General Assistance funds, they are ineligible under federal law.

The Portland Press Herald reported on July 13, 2015, that a preliminary analysis by city staff found that “as many as one-third of the 900 or so immigrants who live in Portland and have been at the center of a debate about public assistance may be ineligible for city aid because they have expired visas and have not applied for asylum.” An immigration attorney quoted in the article explained that under federal law, only immigrants who have formally applied for asylum are protected from deportation until their final legal status is determined; asylum applicants are considered to be lawfully present while they wait for a decision. The question is whether someone can be described as an asylum seeker without having formally applied, according to the article.

Still unaccommodated by the accommodation, Geneva College files certiorari petition

Arguing that the accommodation created for non-profits with religious objections to contraceptive coverage under the Patient Protection and Affordable Care Act (ACA) was a way to force nonprofits to comply with the mandate rather than a means of exemption, Geneva College filed a petition for a writ of certiorari before the Supreme Court. The petition requests that the court review the decision of the Third Circuit, which ruled that the accommodation that allows non-profits to self-certify their religious objections and third-party insurers to provide the objectionable coverage.

Accommodation

Under the ACA (P.L. 111-148), most employers are required to provide contraceptive coverage in their employees’ health plans. While churches are exempted from this requirement, nonprofit religious organizations such as Geneva College are provided an accommodation with regard to this requirement. Pursuant to the accommodation, the organizations with religious objections may self-certify those objections by filling out a form, which will facilitate the transfer of the coverage of objectionable goods and services to third-party insurance providers.

District court

Geneva College opposed the ACA provisions that required employers to provide health care coverage to employees that included coverage of abortifacients. A district court in Pennsylvania granted Geneva’s motion for a preliminary injunction of the accommodation requirements. The court found that the college was likely to proceed on the merits of its claim that the accommodation violated the Religious Freedom Restoration Act (RFRA) (P.L. 103-141) (see Geneva College wins second challenge to contraceptive coverage requirements, Health Reform WK-EDGE, December 31, 2013).

Third Circuit and beyond

The Third Circuit disagreed with the findings of the district court and held that the accommodation did not substantially burden the college. The simple act of filling out the form, according to that court, removed the nonprofits from the obligation of having to provide the objectionable coverage (see Catholics stay clean: form submission ‘washes their hands’ of involvement with contraceptive coverage, Health Reform WK-EDGE, February 18, 2015).

Subsequent to the Third Circuit’s decision, Geneva College, along with a group of other religious charities and nonprofits, requested that the Supreme Court delay the enforcement of that decision, which provided that abortifacients must still be provided under employees’ health plans. Without ruling on whether the decision of the Third Circuit was correct or not, the court declined the request (see Supreme Court will allow Third Circuit ruling to take effect, Health Reform WK-EDGE, July 1, 2015).

Petition

Geneva College argued that the government’s allegation that the accommodation provided “seamless” coverage highlighted the fact that the religious objectors were still included in the coverage of the abortifacients. “Upon executing an objection form or notice, Geneva’s involvement in abortifacient coverage begins, rather than ends…. This leads Geneva and other religious nonprofits to be complicit in providing abortifacient coverage.” Further, Geneva suggests that this case presents the ideal “clean vehicle” for the court to present the issues in question as “relevant facts have never been disputed by either side, and no judge below suggested any deficiencies in the record.”

Colorado won’t back down, challenges $12M disallowance in federal court

After the Departmental Appeals Board (DAB) recently found that CMS properly disallowed $12 million in federal financial participation (FFP) in Medicaid expenditures claimed by the Colorado Department of Health Care Policy and Financing (HCPF), the department filed suit against the federal government challenging that decision. The complaint alleges that HHS wrongly denied the $12 million in payments based on FFP services between 2000 and 2006.

DAB Decision

Previously, the DAB found that the HCPF’s claims over the FFP service payments were time barred. Specifically, the DAB found that section 1132 of the Social Security Act provided that claims for expenditures be filed within two years after the end of the quarter in question and the HCPF’s claims that the delay in filing was due to the time it took to ensure the submissions were accurate were irrelevant (see Colorado loses $12 million in federal funds for twiddling their thumbs, Health Law Daily, August 10, 2015).

Outstationing

The FFP services in question are related to the requirement that state Medicaid plans include outstationing services for low-income individuals to more easily access the Medicaid application process. These services are to be outstationed to alternative locations such as disproportionate share hospitals (DSHs) and federally qualified health centers (FQHCs). In the Colorado matter, Denver Health, an integrated health care network, received repayment for outstationing services but later CMS notified HCPF that it was disallowing $12,064,042 in FFP for those outstationing services provided by Denver Health.

Complaint

The complaint before the district court for the District of Colorado asks the court to set aside the DAB’s decision and to allow Colorado to avoid repayment of the $12 million in FFP funds to the federal government. Specifically, the HCPF states that the DAB decision was arbitrary and capricious, and that the disallowance constitutes a violation of the Medicaid Act. In response to finding that the claims were time barred, the HCPF argues in its complaint that the two-year time period for claiming did not begin to run until the state made the payments to Denver Health or until Denver Health calculated the costs associated with outstationing and certified that those costs were eligible for Medicaid reimbursement.

2nd Cir.: Substantial burden not found in religious accommodation

The regulations promulgated under the Patient Protection and Affordable Care Act (ACA) allowing religious nonprofit employers to opt out of providing contraceptive coverage do not substantially burden the employer’s religious exercise under the Religious Freedom Restoration Act (RFRA) (42 U.S.C. §2000bb et seq.), ruled the Second Circuit in a challenge to the contraceptive mandate brought by two nonprofit Catholic high schools. The court also held that, in reference to the accommodation for religious nonprofits, a substantial burden does not exist where an organization argues that its religious exercise is violated by the government’s internal operations (Catholic Health Care System v. Burwell, August 7, 2015, Pooler, R.).

Background

The ACA (P.L. 111-148) requires employers with 50 or more full-time employees to offer a group plan or group health insurance coverage that provides minimum essential coverage unless an exception applies, including coverage of all FDA-approved contraceptive methods, sterilization procedures, patient education, and counseling for female employees without cost sharing, including copayments or deductibles.

An exemption to the mandate exists for religious employers, which includes “churches, their integrated auxiliaries, and conventions or associations of churches,” as well as “the exclusively religious activities of any religious order.” In response to objections from religiously affiliated organizations that did not qualify for the religious employer exemption, the government created an accommodation, which applies more broadly to religious nonprofit organizations that object to providing contraceptive coverage. The accommodation allows such employers to opt out of paying for objectionable medical services, which would then be provided by the employer’s insurer or third-party administrator. The provision of contraceptive coverage by the insurer or third-party administrator is spurred by the employer’s completion of EBSA Form 700, which is sent to the employer’s insurance company or third-party administrator, or by the sending of a letter to HHS detailing the religious objections.

Religious employers

Cardinal Spellman High School and Monsignor Farrell High School (the schools) are nonprofit Catholic high schools in New York that are affiliated entities of the Roman Catholic Archdiocese of New York. The schools, which qualify for the accommodation to the mandate, offer health insurance to employees under the Archdiocese’s self-insured health plan, administered by United Healthcare and VCS Caremark as third-party administrators. The schools argue that the contraceptive coverage mandate, including the accommodation, violates their rights under RFRA. RFRA provides that the government “shall not substantially burden a person’s exercise of religion” unless the application of that burden is the least restrictive means of furthering a compelling government interest.

RFRA analysis

RFRA required the court to assess whether the schools had shown a substantial burden on their exercise of religion. The schools argued that the mandate constitutes such a burden by forcing them to choose among three unacceptable options:

  1. provide contraceptive coverage;
  2. pay the fines and penalties associated with failure to provide contraceptive coverage; or
  3. opt out of the mandate via the accommodation using either method of self-certification.

The Supreme Court in Burwell v. Hobby Lobby Stores, Inc.identified the accommodation as a way to alleviate a substantial burden on the religious exercise of for-profit corporations. However, the schools contend that by submitting the opt-out notification, they are indirectly facilitating the provision to their employees of objectionable contraceptive coverage. The Second Circuit held that the schools failed to show a substantial burden, as the only obligation actually imposed on them is to identify themselves as religious objectors. The court stated, “Through a modicum of paperwork, an eligible organization throws the entire administrative and financial burden of providing contraceptive coverage on its insurers or third-party administrator.” This simple act imposes no substantial burden on the schools’ religious exercise.

The court rejected the argument that forcing the schools to choose between the accommodation, which the schools maintained to be religiously objectionable, or suffering substantial penalties puts pressure on the schools to modify their behavior and violate their beliefs. It also rejected the argument that the accommodation is a substantial burden because it renders the schools complicit in bringing about consequences forbidden by their religion, as courts “have not found a substantial burden where a plaintiff argues that her religious exercise is violated by the government’s internal operations or, by extension, its decision to burden third parties, even where the plaintiff plays a precipitating role.”

The case is Docket No. 14-427-cv.