Supreme Court issues opinion in contraceptive mandate challenge


Today, the Supreme Court issued its opinion in Zubik v. Burwell. The per curiam opinion does not reach a decision on the merits of the case, in which religious employer petitioners argued that the Affordable Care Act’s contraceptive mandate substantially burdens the exercise of their religions in violation of the Religious Freedom Restoration Act. The Court remanded the consolidated cases, directing the Courts of Appeals to afford the parties “an opportunity to arrive at an approach going forward that accommodates petitioners’ religious exercise while at the same time ensuring that women covered by petitioners’ health plans ‘receive full and equal health coverage, including contraceptive coverage.'”

In a concurring opinion, Justice Sotomayor, joined by Justice Ginsburg, reminded lower courts that they should not construe the per curiam opinion or the Court’s earlier request for supplemental briefing as providing an indication of the Court’s views on the merits of this and related cases. Sotomayor noted that the Court has made similar disclaimers before, but”some lower courts have ignored those instructions.” She warned, “on remand in these cases, the Courts of Appeals should not make the same mistake.”

A full analysis of the decision is forthcoming; for additional information about the oral arguments in this case, see High court weighs government’s interest in protecting women’s health against hijacking religious organizations’ insurers, Health Reform WK-EDGE, March 24, 2016. For information about the supplemental briefing requested by the Court, see SCOTUS asks for supplemental briefing on alternative accommodations in Zubik, Health Reform WK-EDGE, April 1, 2016.

You can refer to Wolters Kluwer’s Health Reform Topic Page on Contraceptive Coverage for all developments related to the Affordable Care Act’s contraceptive mandate.

Is there a better way than the ACA? Hearing asks experts

Lawmakers considered health care reforms to improve pre-existing condition protections, lower patient costs, and encourage plan innovation at a hearing held by the House Committee on Energy and Commerce, Subcommittee on Health. The hearing included testimony from health reform experts on the ways the Patient Protection and Affordable Care Act (ACA) (P.L. 111-148) has aided or hindered the advancement of health care and experts offered recommendations for how the health reform law can be advanced or altered to improve the industry.

ACA improvements

Sabrina Corlette, a research professor and project director at Georgetown University, testified that while the ACA has led to significant improvements in access to care and health insurance coverage, now, six years beyond the law’s enactment, lawmakers have new opportunities to further the ACA’s reach and strengthen its benefits. Corlette acknowledged that the ACA is not a perfect law and suggested that lawmakers improve upon it by: (1) providing incentives for the remaining non-expansion states to expand Medicaid; (2) fix the glitch that prevents working families from obtaining marketplace credits; (3) improve affordability because, for many low- and moderate-income individuals, insurance costs remain out of reach; (4) support outreach and enrollment efforts; and (5) improve the marketplace shopping experience.


More dramatic steps need to be taken to improve consumer choice and shrink rising costs, according to the testimony of Scott Gottlieb, resident Fellow at the American Enterprise Institute. Gottlieb pointed to alarming trends in the health insurance market, like narrowing provider network, shrinking drug formularies, increases in mandated costs for insurers, more limited tools to manage actuarial risk, provider consolidation, inefficient care, and limited economic accessibility of coverage purchased outside of employer relationships.


Many of these problems could be alleviated, according to Gottlieb, if regulatory standards were better designed to encourage innovative plan designs. He warned that the marketplace’s current tier and formula restrictions are too narrow to allow for bottom up approaches to plan design that could lead to novel and cost saving coverage. Gottlieb noted that the tiered approach, while helpful from a consumer plan selection point of view, has served to hinder advancement of plan design by forcing insurers into narrow design corridors. He also suggested that CMS move away from mandates and towards incentives as a means to get people into the insurance market.

Flawed design

The ACA is also responsible for dramatic increases in the cost of individually-purchased health care, according to the testimony of Avik Roy, Senior Fellow at the Manhattan Institute. Roy testified that while the ACA reduced the number of Americans who are uninsured, it has fallen short of coverage projections and exacerbated other problems. To improve upon what he called the ACA’s “flawed design,” Roy recommended a transition away from ACA models towards a non-group health insurance market which would: (1) give patients control of health care dollars; (2) make premiums more affordable for young and healthy enrollees; (3) enable voluntary participation; (4) provide affordable premiums and guaranteed coverage for individuals with pre-existing conditions; and (5) streamline tax credits.

$260M grant supports renovation, expansion of community health centers

Community health centers (CHCs) in 45 states, the District of Columbia, and Puerto Rico, will receive $260 million via the Patient Protection and Affordable Care Act (ACA) (P.L. 111-148) Community Health Centers Fund to support facility renovation, expansion, or construction. The HHS funding will go toward helping the 290 recipients increase patient capacity and provide additional comprehensive primary and preventive health services to medically underserved populations.

The awards will allow CHCs to renovate or acquire new health clinical space to increase capacity and provide care to more than 800,000 new patients across the country. Almost 1,400 CHCs currently serve nearly 23 million people each year. Previously, HHS awarded nearly $500 million in ACA funding to support CHCs’ provision of primary care services, including medical, oral, behavioral, pharmacy, and vision care (see Health centers funding receive $500 million ACA booster shot, Health Law Daily, September 16, 2015). In addition to providing funding for primary care services, the award supported outreach and enrollment activities to help individuals find health care coverage best meeting their needs prior to the beginning of the marketplace’s open enrollment period.

Funding of community health centers

CHCs are public and private non-profit health care organizations that comply with federal requirements to serve a medically underserved population; provide appropriate and necessary services with fees adjusted according to patients’ ability to pay; demonstrate sound clinical and financial judgment; and be governed by a board, a majority of which includes patients of the CHC. For most CHCs, grant funding constitutes about 18 percent of operating revenue, with the remainder coming from Medicaid, Medicare, private insurance, patient fees, and other resources.

Underreported and unaddressed: medical error deaths a big problem

Medical error deaths are estimated to be the third leading cause of death in the United States. However, because medical errors do not have an International Classification of Disease (ICD) code, this is not listed as a cause of death on death certificates or in most rankings. An analysis published in the BMJ from physicians at Johns Hopkins noted that measurements of medical error deaths are out of date, and that internal discussions of human error rarely result in widespread lessons on prevention.

Medical error deaths

Medical error has several definitions, from an act that fails to achieve the desired outcome, an error of execution, an error in planning, or a deviation from the process of care. Patient harm can result either from an individual or systemic level, and the BMJ noted that while many errors are minor, some can accelerate death or cause the death of someone with a long life expectancy.

The impact of such errors is difficult to determine, as a commonly cited estimate of annual medical error deaths comes from a 1999 Institute of Medicine (IOM) report. This report did not involve primary research, and concluded incidence rates of 44,000-98,000 annually based on studies from 1984 and 1992. The article pointed to government reports that suggested these rates are as high as 180,000 among Medicare beneficiaries alone. The authors estimated that medical error deaths fall below heart disease and cancer as the leading causes of death in the country.

A lack of change

The authors call on the Centers for Disease Control and Prevention (CDC) to take action by requiring physicians to report any errors that led to a preventable death. Another physician noted that despite the 1999 IOM report, little change has taken place and the only parameter showing improvement is hospital-acquired infections. He attributed some of the problems to the varying ways in which health care is delivered and a lack of standardization among practices. Although death rates due to medical errors can be alarming, this does not include the amount of severe injuries patients experience due to medical errors, which some estimate is 40 times the death rate.

Government efforts

The hospital-acquired condition (HAC) reduction program was established by section 3008 of the Patient Protection and Affordable Care Act (ACA) (P.L. 111-148) in an effort to draw hospitals’ attention to the problem. Those that rank among the lowest quartile for risk-adjusted HAC quality measures are subject to a reimbursement reduction. In 2014, CMS announced that 721 hospitals were penalized on the basis of three different types of HACs. For fiscal year (FY) 2016, 758 hospitals fell into the lowest quartile and were penalized, which CMS believes will result in a $364 million savings (see $364M projected savings for 2016 under HAC Reduction Program, Health Law Daily, December 16, 2015).