Webinar: Delay, Deregulate, Derail — Health Care Roiled by Actions of Trump and Congress

Since January, both President Trump and Republican leaders in Congress have talked about a three-step process for repealing and replacing the Patient Protection and Affordable Care Act (ACA). While the first six months of the Trump administration has seen mixed results, its efforts to reign in or hold back regulations, combined with its delay in filling lower-level agency roles, has impacted regulatory review and issuance of new regulations. So, despite Congress’ inability to pass legislation to change parts of the ACA, there is still plenty for providers to be concerned about.

Join Associate Managing Editor Kathryn Beard, JD, on Wednesday, August 2, for this half-hour live webinar covering attempts by the Trump Administration and Congress to delay, deregulate, and derail significant parts of federal health policy. She will discuss the two “repeal and replace” bills, FDARA, and significant executive and regulatory actions taken by the Trump administration which directly impact ACA provisions.

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Federal and beneficiary spending on Medicare will skyrocket if ACA repealed

Repeal of the Affordable Care Act, as promised by the incoming Congressional leadership and President-elect Donald Trump’s (R) Administration, would not only increase Medicare spending but also lead to higher beneficiary costs, a less-solvent Part A trust fund, and the return of the Part D drug benefit “doughnut hole.” The Kaiser Family Foundation (KFF) published an issue brief on the Medicare implications of repeal of the Patient Protection and Affordable Care Act (ACA) (P.L. 111-148), finding that the Medicare provisions of the ACA have strengthened Medicare’s financial status for the future, and repeal would weaken the program.

KFF noted that the Congressional Budget Office (CBO) estimated an increase in Medicare spending of $802 billion from 2016 to 2025 if the ACA were repealed in full (see Repealing the Affordable Care Act—an unaffordable idea?, Health Reform WK-EDGE, June 24, 2015). This increase would primarily be attributed to higher payments to health care providers and Medicare Advantage (MA) plans, which the ACA reduced based on the expectation that due to coverage increases, hospitals would have fewer uninsured patients.

Repeal of the ACA would increase Medicare Parts A and B spending by $350 billion over 10 years. It would also increase Part A deductibles and copayments and Part B premiums and deductibles. Similarly, the ACA removed a payment per enrollee discrepancy that paid MA plans 14 percent more than traditional Medicare; in 2016, MA plans only received 2 percent higher payments than traditional plans. A repeal would increase MA spending; however, it would also potentially reduce MA enrollees’ costs or allow them to receive additional benefits.

Under the ACA, certain Medicare benefits are available with no cost-sharing, including a yearly exam and some preventive screenings. The ACA also closed the coverage gap, or doughnut hole, in the Part D drug benefit. Without these changes, beneficiary costs would increase for preventive services and drugs.

The ACA played a role in extending the solvency of the Medicare Trust Fund by establishing new dedicated sources of revenue. As a result, four years’ time was added to the Medicare trustees’ projection of asset depletion in 2014 (see Life expectancy of Medicare trust funds extended to 2030, July 30, 2014). A repeal of these revenue provisions would give the Trust Fund a shorter lifespan.

The analysis also considered repeal of the ACA’s provisions for the following:

  • Freezing income thresholds for the Part B income-related premium;
  • Creating a formal method to expand payment and delivery system reforms through the Center for Medicare and Medicaid Innovation (CMMI);
  • Reducing preventable hospital readmissions and hospital-acquired conditions; and
  • Establishing new accountable care organization (ACO) programs.

Overall, KFF determined that ACA repeal without corresponding replacement legislation would weaken Medicare’s financial status for the future while costing beneficiaries and the federal government more.

Are employer wellness programs under attack by the EEOC?

Many employers or their group health insurance plans offer wellness programs to promote healthier lifestyles for their employees. These employer wellness programs (EWPs) often involve medical questionnaires, health risk assessments (HRAs), and weight, cholesterol, glucose and blood pressure screenings. Some employer and group health insurance plans offer financial and other types of incentives to participating employees or to those who achieve certain targeted health outcomes.

Until 2014, it seems to have been clear sailing for employers on the EWP front as long as they complied with certain federal nondiscrimination provisions. In 2014, however, the U.S. Equal Employment Opportunity Commission (EEOC) starting filing lawsuits against employers alleging that their EWPs were not voluntary as required by Title I of the Americans with Disabilities Act (ADA). While the courts have uniformly ruled in favor of the employers in these cases, the EEOC, nevertheless, proceeded to propose new regulations under the ADA and Title II of the Genetic Information Nondiscrimination Act (GINA) that imposed new standards and ignored an existing ADA “safe harbor” provision for bona fide employer benefit plans. Despite both Congressional concerns and numerous industry comments asking the EEOC to align its new ADA and GINA final rules with the requirements of the Health Insurance Portability and Accountability Act (HIPAA) (P.L. 104-191) and the HIPAA privacy and security breach notification requirements, with which employers had worked so hard to comply, the final rules made no concessions to these concerns.

This White Paper first examines the federal law applicable to EWPs, the recent court challenges by the EEOC, the new ADA and GINA final rules, and the status of proposed legislation to void the rules. It closes by providing the results of a Q&A session with industry experts and advice on what employers should do to ensure that their EWPs pass muster with the new EEOC rules, both applicable on January 1, 2017.

Read further, “Are employer wellness plans under attack by the EEOC?

What has been isn’t necessarily what shall be when it comes to state Medicaid contraception benefits

Beginning in 2017, states will have the ability to revisit the Patient Protection and Affordable Care Act’s (ACA’s) private insurance expansion via ACA innovation waivers, which is in addition to the ability to modify state Medicaid plans via a waiver of federal Medicaid law. A new analysis from researchers at the Guttmacher Institute argue that reproductive health advocates should monitor these waivers closely, because they could have significant implications for sexual and reproductive health and rights.

Medicaid waivers

Waivers under Section 1115 under the Social Security Act have been available for use since 1965. Most states are operating under at least one of these waivers. After the Supreme Court’s 2012 decision in National Federation of Independent Business v. Sebelius, states gained considerable leverage to alter state Medicaid plans in their negotiations with CMS to adjust to the new requirements of the ACA. According to the Guttmacher study, “In the field of sexual and reproductive health, Medicaid waivers are perhaps best known as the original means by which states have expanded eligibility for family planning coverage to women and men ineligible for broader Medicaid.” Currently, there are six states which took advantage of this and expanded Medicaid via an experimental waiver of federal requirements.

Medicaid innovation waivers

In 2017, states will also have the ability to use ACA innovation waivers, which are authorized under section 1332 of the ACA. These waivers offer states the ability to modify major pieces of the ACA, such as the individual mandate and the employer mandate. They can also change all of the major aspects of the ACA’s private insurance marketplaces. State changes under innovation waivers, however, may not result in less comprehensive coverage, less affordable coverage or provide fewer residents with coverage. The waivers must also be budget neutral for the federal government.

Should they decide to use an innovation waiver, states will be required to gain approval from the federal government (from HHS and the Department of the Treasury), obtain public input and analyze the governmental impact. Legislation would have to be passed for changes to be made, and states will need to renew the waivers approximately every five years.

In December, 2015, the government provided significant guidance on what can and cannot be modified under these innovation waivers. This guidance explained four so-called “guardrails” to determine what states can and cannot do. According to the guidance, the federal government will look not only at the overall population, but also at the more vulnerable population groups to determine whether the state coverage is at least as comprehensive as it would be in the absence of the waiver. States will not be able to use projected savings from changes within Medicaid to help finance expanded private-sector coverage for higher-income groups via ACA innovation waivers. They will not receive help from the federal government to make changes to the marketplaces, and should states decide to change their marketplaces, they will have to do so on their own. Further, the Internal Revenue Service will not have the power to issue state-specific rules about affordability tax credits and states will have to handle this on their own as well.

Potential

While Medicaid waivers have been used to expand eligibility, there are many factors which could swing the availability of reproductive health benefits in the other direction under Medicaid innovation waivers. According to Guttmacher,”the next administration has the opportunity to weaken these protections in ways that might undermine access to sexual and reproductive health care and providers. Alternatively, the next administration could help states further advance access to comprehensive coverage and care, including sexual and reproductive health care.”

With the availability of the innovation waiver coming into play in 2017, states are beginning to eyeball just what changes they can make. They are also keeping close watch on the election season for fall 2016. Depending on the results of this election, the federal government could potentially change that guidance document. The Guttmacher analysis points out that, “advocates should be on the lookout for Medicaid and ACA innovation waivers that would restructure payment rules and network adequacy requirements in ways that could impact reproductive health providers.” The ACA’s preventive services guarantees, such as coverage protections for contraception, HIV and other sexually transmitted disease screening, and breastfeeding support is not something that can be changed under an ACA innovation waiver, but Guttmacher advises that “reproductive health advocates should keep an eye on state attempts to expand formularies and other utilization control tools available to plans, to ensure that they do not somehow conflict with the coverage protections for contraception and other preventive services.”