2015
ACA Case Continues in US District Court (October 2015)
As previously reported, the US District Court for the District of Columbia ruled that the House could proceed in a lawsuit brought against the Obama Administration challenging the legality of using unappropriated funds to implement the ACA. In an effort to end the legal action, the Administration appealed the decision to allow the case to proceed. In a setback for the Administration, a judge refused to certify the case for appeal prior to the issuance of a final judgment. As a result of this most recent ruling, the case will continue to proceed in the US District Court. The ACOI will continue to monitor this case and its potential impact as it works its way through the judicial system.
HHS Awards nearly $500 Million in ACA Funding to CHCs (September 2015)
The Department of Health and Human Services (HHS) announced nearly $500 million in grants awarded to community health centers (CHC) to increase access to primary care services and renovate facilities. Specifically, about $350 million will be provided to 1,184 CHCs to increase access to services. Grants totaling nearly $150 million will be provided to 160 CHCs to fund renovations, expansion or construction. According to a statement by HHS in announcing the grants, “These awards will give 1.4 million more Americans across every state access to comprehensive quality care.” In total, CHCs serve nearly 23 million people in rural and poor urban areas at approximately 9,000 clinical sites in every state and US territory.
ACA Headed Back to Court (September 2015)
The US District Court for the District of Columbia ruled that the House of Representatives can proceed in a lawsuit brought against the Obama administration. The House brought suit alleging that the Administration improperly used unappropriated funds to implement the ACA. The suit argues that the President spent billions of dollars absent any appropriations by Congress in violation of the Constitution. While the case was viewed by many to be political in nature, the court found, “It became clear that the House has suffered a concrete, particularized injury that gives it standing to sue.” The ACOI will continue to monitor this case and its potential impact as it works its way through the judicial system.
New CBO Report Examines Cost of Repealing ACA (August 2015)
A new report released by the non-partisan Congressional Budget Office (CBO) states that repealing the ACA in its entirety would increase the federal budget deficit by $353 billion over the next 10 years. Further, the report finds that a repeal of the ACA would raise Medicare spending while reducing health insurance subsidies, costs for Medicaid and coverage for poor children. In addition, the report says that a repeal of the ACA would result in an additional 19 million uninsured people in 2016 and more than 24 million by 2020. Finally, the report notes that around six million people would gain employer-sponsored coverage. These new findings released by the CBO report are certain to play a role in future debates examining a full or partial repeal of the ACA. This CBO report gained a new significance following the Supreme Court’s recent decision. The full report is available at www.cbo.gov.
Supreme Court Upholds Critical Component of ACA (July 2015)
The U.S. Supreme Court upheld a critical piece of the Affordable Care Act (ACA) on June 25. In a 6-3 decision, the Court found in King v. Burwell that the language of the ACA does not preclude the payment of subsidies to people who purchase health insurance coverage through federally-sponsored exchanges. At issue was a sentence in the ACA that provides that an individual’s tax credit is determined based on the cost of insurance purchased on an “Exchange established by the state.”
In writing for the majority and addressing the ambiguity of the sentence in question, Chief Justice Roberts stated, “The Court nevertheless must do its best, bearing in mind the fundamental canon of statutory construction that the words of the statute must be read in their context and with a view to their place in the overall statutory scheme.” Chief Justice Roberts went on to conclude, “Those credits are necessary for the Federal Exchanges to function like their State Exchange counterparts, and to avoid the type of calamitous result that Congress plainly meant to avoid.” This decision protects subsidy payments to nearly 6.4 million low-income Americans in 34 states.
While the decision all but ends the possibility of the ACA being repealed through judicial means, it is certain to remain a topic for legislators and candidates. In fact, leaders in both the House and Senate, as well as presidential candidates, have publicly stated their intention to continue to work to repeal the ACA in its entirety. Further, it is possible that Congress will attempt to impact the ACA through the appropriations process. The ACOI will continue to monitor developments impacting this law. .
Congress Adopts Budget Blueprint (May 2015)
The House and Senate approved a non-binding joint budget resolution that provides the framework for appropriations legislation that will fund the government for fiscal year 2016. Included in the package is language instructing committees of jurisdiction in both the House and Senate to explore a full repeal of the Affordable Care Act (ACA) through budget reconciliation – a budget rule designed to force committees to change mandatory and entitlement spending to create savings. The joint resolution also directs committees with jurisdiction to determine the “specific Medicare reforms needed to bring spending levels under current law in line with the budget.” The budget deal also requires full payment of the recently-enacted Medicare physician payment reform legislation. As approved, the cost of the legislation is only partially offset. While the budget resolution is non-binding, it will serve as a blueprint for the budget negotiations that are just getting underway and will run through at least the fall. The ACOI will continue to closely monitor budget initiatives that could impact physicians and the patients they serve.
Rand Report Finds Expanded Healthcare Coverage under the ACA (May 2015)
According to a report released by the Rand Corporation, a net 16.9 million adults gained insurance coverage under the ACA from September 2013 through February 2015. The study indicated, “While the net change in insurance was positive, we estimated that there were declines in enrollment in nongroup plans and in ‘other’ coverage, such as non-Medicaid public coverage.” According to the findings of the report, 22.8 million adults, ages 18-64, gained coverage and 5.9 million lost coverage. The number of uninsured individuals overall fell from 42.7 million in 2013 to 25.8 million in 2015.
Supreme Court Hears ACA Oral Arguments (March 2015)
The Supreme Court heard oral arguments in the case of King v. Burwell on March 4. At issue is whether the ACA allows for the issuance of tax subsidies for plans purchased through federally-sponsored exchanges. The ACA includes a sentence that provides that an individual’s tax credit is determined based on the cost of insurance purchased on an “Exchange established by the state.” At question is whether the language means exactly what it says or whether subsidies can also be paid to those who purchase coverage through federal exchanges. The Court’s interpretation and application of these words could result in the repeal of a key provision of the Act and effectively block tax subsidies from being paid in approximately 34 states where the federal government runs the exchanges.
The nine member Court is certain to be divided with one or two justices likely tipping the balance. Concern has been raised that that if the Court determines that subsidies can be paid only to those purchasing coverage through their state, up to an estimated 9.3 million Americans will become unable to afford healthcare coverage. The Administration has indicated that there is no administrative action it could take to address an adverse ruling by the Court. Republicans in the House and Senate have stated that they will work to develop legislation to allow for a transition for those no longer be eligible for the subsidy and subsequently unable to afford coverage. Senate Republican leaders have indicated that they will work to advance legislation to end the federal mandate and allow for great consumer choice. House Republicans announced they will pursue legislation to allow for the sale of health insurance products across state lines, enact medical liability reform, and maintain some of the more popular provisions of the ACA, among other things. The pending decision by the Court is certain to promote continued debate of the ACA and its provisions. The ACOI will continue to monitor this matter.
House Votes to Repeal ACA (February 2015)
The House recently voted to repeal the Affordable Care Act by a vote of 239-186. The vote was mostly along party lines with three Republicans voting against the bill. This marks the 56th time that the House has voted to repeal or modify the ACA since it was enacted. While the legislation was approved overwhelmingly by the House, the Administration has indicated that it will veto the bill should it be presented for signature. According to the White House, repeal of the ACA would result in millions of Americans loosing access to affordable health insurance coverage and would increase Medicare spending. The mostly-symbolic vote did differ from previous attempts to repeal the ACA in that the legislation directs House committees of jurisdiction to put forth legislative proposals to replace the ACA with legislation that meets specific goals. It appears unlikely that this legislation will be approved by the Senate. The Supreme Court is expected to hear oral arguments on a case examining the ACA in March with a ruling to follow this summer. Depending on the ruling of the Court, additional action on the ACA could follow.
Expired ACA Provision Results in Possible Reimbursement Reductions (January 2015)
In an effort to respond to an expected increase in individuals receiving health care coverage through Medicaid, and to ensure access to physician services, the Affordable Care Act (ACA) contained a temporary provision increasing reimbursements to primary care physicians under the Medicaid program. The provision expired on December 31, resulting in a nearly 43 percent average reduction in Medicaid fees. The temporary two-year increase was entirely funded by federal funds. In response to the reduction, 15 states have indicated that they will continue to pay Medicaid claims at the higher rate out of state funds to ensure that patients continue to have access to primary care services. Twenty-three states have indicated that they will not maintain the higher rates. The remaining states are still identifying what action they will take. It is unclear whether Congress will act to address this additional reduction in physician reimbursement. The ACOI is continuing to monitor this matter closely.
House Passes Legislation to Amend the ACA 2014
The new Congress wasted little time in acting on legislation to amend the ACA. The House approved legislation to amend the ACA to redefine the work week from 30 to 40 hours. Under existing law, the work week is defined as 30 hours to increase the number of employers required to provide health insurance coverage under the “employer mandate.” The provision has been a source of contention with policy makers and others who have contended that the current definition adversely impacts workers by creating an incentive for employers to reduce work hours to avoid application of the employer mandate. The legislation approved by the House would allow employers to increase the number or hours an employee can work before being required to provide employer-sponsored health insurance coverage.
According to estimates by the Joint Committee on Taxation (JTC) and the Congressional Budget Office (CBO), the legislation is expected to reduce the number of people receiving employer-based coverage by one million; increase the number of people receiving coverage through Medicaid, the Children’s Health Insurance Program (CHIP) or health insurance exchanges by 500,000 to one million; and increase the number of uninsured by less than 500,000. The White House has issued a statement indicating that it will veto the legislation should it make it to the President’s desk. It is not clear that Congress would be able to override the veto.
2014
ACA Headed Back to the Supreme Court (November 2014)
The constitutionality of another provision of the Affordable Care Act (ACA) is set to be considered by the Supreme Court. The Court recently announced that it will hear oral arguments in the case of King v. Burwell. At issue is whether the ACA allows for the issuance of tax subsidies for plans purchased through federally-sponsored exchanges. The ACA includes a clause that provides that an individual’s tax credit is determined based on the cost of insurance purchased on an “Exchange established by the state.” The Court’s interpretation and application of these words could result in the repeal of a key provision of the Act and effectively block tax subsidies in 36 states where the federal government runs the exchanges. The affordability of coverage for millions of Americans could be impacted by the Court’s action. The ACOI will continue to monitor this situation closely.
ACA Website Comes Under Attack (September 2014)
According to the Centers for Medicare and Medicaid Services (CMS), the HealthCare.gov website was hacked into in July. The attack was not discovered until late August. The website has been plagued with problems from its inception last year and remains a target of opponents of the Affordable Care Act. Following a review by the Department of Homeland Security, which investigated the attack, the attack was found to have infected one machine with malware intended to attack other websites. CMS stated that it does not believe that any personal data was compromised. It is likely that this matter will be reviewed in future congressional hearings.
ACA Possibly on its Way Back to the Supreme Court (August 2014)
Two federal appeals courts recently disagreed on the interpretation of language contained in the Patient Protection and Affordable Care Act (ACA) providing for the payment of subsidies to low-income individuals who purchase coverage through Exchanges. Specifically, the question is whether subsidies can be provided to individuals who purchase coverage through federally-run Exchanges which were established in states where states refused to create their own. The law as written allows for the payment of subsidies when an Exchange is “established by the state.” The split decisions ensure that additional legal maneuvering will take place and creates the possibility that another issue created by the ACA will be reviewed by the Supreme Court. The competing decisions are significant in that they go to the heart of the ACA’s efforts to make available affordable healthcare coverage. The ACOI will continue to monitor these cases.
Second Phase of Physician Payment Sunshine Act Underway (July 2014)
The “Physician Payment Sunshine Act” created under the ACA requires manufacturers of drugs, devices, biologicals or medical supplies to report annually certain payments or other transfers of value to physicians and teaching hospitals. The required reporting is intended to promote transparency of financial relationships between the medical industry and healthcare providers on a publicly accessible website to help consumers make informed decisions.
While it is the obligation of the applicable manufacturers to report to CMS the required information, physicians and teaching hospitals are strongly encouraged to check the information being reported about them. To do this, registration is required first in the CMS Enterprise Portal followed by registration in the Open Payments System. While registration is voluntary, it is required if the physician or teaching hospital wishes to review and dispute any of the data reported about them by the applicable manufacturers. Additional information is available at www.cms.gov.
Report Finds 20 Million Gained Coverage under the ACA (July 2014)
The Commonwealth Fund recently released a study stating that over 20 million Americans gained health insurance coverage or were enrolled in a new health plan as result of the ACA. The analysis includes: those who enrolled through exchanges; those who gained coverage through provisions of the law such as the dependent coverage provision; and those who enrolled in Medicaid and the Children’s Health Insurance Program (CHIP). According to the study, approximately eight million people enrolled through exchanges, one million young adults gained coverage, five million people bought insurance directly from insurers, and about six million gained coverage through Medicaid or CHIP. Additional information on the impact of the ACA on health insurance coverage is available at www.commonwealthfund.org.
Bill to Amend the ACA Clears the House (May 2014)
The House approved legislation to amend the definition of “full-time” employee as set forth in the ACA. The present definition under the ACA is an employee who works 30 or more hours per week. Employers with 50 or more employees are required to provide health care coverage for full-time employees under the “employer mandate.” The legislation approved by the House would amend the ACA to define a full-time employee as one who works 40 or more hours per week. Supporters of this legislation contend that the amendment would address concerns that employers have reduced the number of hours worked by their employees to avoid application of the ACA employer mandate. While this provision of the ACA gained attention and was a concern prior to its enactment, it appears unlikely that the Senate will consider this or similar legislation this session.
Enrollment under ACA Exceeds Expectations (May 2014)
The Obama administration announced enrollment in state and federal health exchanges surpassed eight million. This exceeds the administration’s goal for the first open enrollment period and marked a significant improvement from its rocky initial stages. According to the Department of Health and Human Services, 35 percent of the new enrollees are between the ages of 18 and 34. While the goal for this segment of enrollees was 40 percent to ensure the creation of a stable risk pool, the final numbers are a significant improvement over the initial enrollment data. The Administration indicated that it will continue to reach out to those who are eligible to enroll prior to the next open enrollment period later this year.
ACA Provision Considered by Supreme Court (April 2014)
The Supreme Court heard oral arguments in Sebelius v. Hobby Lobby Stores, Inc. and Conestoga Wood Specialties Corp. v. Sebelius on March 25. At question is whether secular, for-profit corporations can be required to provide health insurance coverage that covers contraceptive drugs and devices at no cost to the employees as required by federal regulations created as a result of the ACA if there is a religious objection. Hobby Lobby Stores and Conestoga Wood Specialties argued that the contraceptive mandate is a substantial burden to their religious freedom in violation of the Religious Freedom Restoration Act (RFRA). The Court will determine if the requirement to provide contraceptive coverage serves a compelling government interest and if it is the least restrictive means of fulfilling that interest. The manner in which the Court decides this case could impact future cases challenging provisions of the ACA and how they are handled. A decision is expected later this year.
CMS Announces Start of Data Collection on Payments to Physicians (March 2014)
The Centers for Medicare and Medicaid Services (CMS) has indicated that data submissions by drug and device manufactures have begun as required by the Physician Payments Sunshine Act (Open Payments Program) under a two phase approach. Both phases of data submission are scheduled to be complete by August 1. Following conclusion of the first two phases, physicians will have the opportunity to review the submitted information to check for accuracy and correct any potential errors.
The program was created by the ACA and requires drug and device manufactures as well as certain group purchasing organizations to report payments and other transfers of value to physicians and teaching hospitals. Reportable items include but are not limited to gifts, consulting fees, and research activities, among other things. You can learn more about the Open Payments Program by visiting www.cms.gov/Regulations-and-Guidance/Legislation/....
2013
Supreme Court Set to Hear Additional ACA Challenge (December 2013)
The US Supreme Court announced that it will consider two cases challenging the “women’s preventive services” mandate contained in the ACA. The Court has allotted one hour for oral argument to examine whether for-profit secular corporations can be required to provide coverage for contraceptive services as provided for in the ACA. The Court granted review of Conestoga Wood Specialties Corp. v. Secretary of the United States Department of Health and Human Services and Hobby Lobby Stores, Inc. v. Sebelius. Both private corporations argue that the requirement to provide coverage for contraceptive services or face a fine is a violation of the Religious Freedom Restoration Act (RFRA). Conestoga Wood Specialties is also arguing that the requirement is a violation of the Free-Exercise Clause of the Constitution. The two cases have been consolidated into one and will be presented to the Court early next year with a ruling most likely handed down by July 2014.
House and Senate Committees Review ACA Rollout (October 2013)
House and Senate committees with jurisdiction have conducted their first series of hearings examining the implementation of the Patient Protection and Affordable Care Act’s (ACA) health insurance exchanges. Testimony was provided by four representatives of contractors responsible for the design and operation of the federally-facilitated marketplace website. In addition, Secretary of Health and Human Services Kathleen Sebelius and Centers for Medicare and Medicaid Services (CMS) Administrator Marilyn Tavenner testified before the committees. Following the hearings, additional information has been requested from federal officials. Additional congressional action is expected. The ACOI will continue to closely monitor this and other matters related to the implementation of the ACA.
Sunshine Act Goes Into Effect (August 2013)
The Physician Payments Sunshine Act created under the (ACA) took effect on August 1. The Act created the National Physician Payment Transparency Program to promote greater transparency with regard to financial relationships that could influence the drugs, devices, biologics, or medical supplies used in healthcare. As a result, drug and medical device manufacturers must begin reporting to CMS any payments, ownership interests and other “transfers of value” to physicians. The reported data will be published in an online database beginning in 2014 in an effort to prevent inappropriate influences on research, education and clinical decision-making.
House Responds to Employer Mandate Delay (August 2013)
In response to the White House’s announcement that it will delay implementation of the Patient Protection and Affordable Care Act’s (ACA) employer mandate provision for one year, the House approved two related pieces of legislation. First, the House approved the “Authority for Mandate Delay Act” (H.R. 2667” by a vote of 264-161. H.R. 2667 would put in statute the delay announced by the Administration. Following this action, the House approved the “Fairness for American Families Act” (H.R. 2668) by a vote of 251-174. H.R. 2668 would delay for one-year implementation of the individual mandate which requires most uninsured individuals with taxable income to obtain health insurance coverage or pay a penalty. Both bills were approved along mostly party lines on July 17. House leadership announced that the bills would be combined and sent to the Senate, where it is unlikely that they will be considered. The White House also issued a statement that the legislation would be vetoed should it be approved by Congress.
40th Repeal Vote Cast in House (August 2013)
The House held its 40th vote to repeal or defund a portion of the ACA on August 2. On a vote of 232-185, the House approved the “Keep the IRS off Your Health Care Act” (H.R. 2009). The legislation would prevent the IRS from implementing tax provisions of the ACA. H.R. 2009, which was approved mostly along party lines, would prevent the IRS from collecting penalties from individuals who are required to secure health insurance coverage under the ACA and fail to do so. In addition, the bill would prevent the IRS from distributing subsidies to eligible individuals to buy health insurance coverage. The House considered H.R. 2009 prior to beginning its August recess on August 2. The Senate is not expected to consider this legislation.
CBO Scores Cost of Delaying Employer Mandate (August 2013)
In a new report the non-partisan Congressional Budget Office (CBO) estimates that it will cost approximately $12 billion dollars to delay for one year the employer mandate provision of the ACA. According to the CBO, there will be approximately a $10 billion loss in penalties collected from employers. In addition, it is estimated that it will cost about $3 billion in increased spending for exchanges due to additional people seeking coverage through them. Finally, the CBO estimates that the delay will save $1 billion in reduced taxable income savings. The CBO places the current price tag for the ACA at $1.375 trillion over 10 years.
HHS Announces Updated ACA Website (July 2013)
HHS announced that it has updated www.HealthCare.gov in preparation of the October 1 start of open enrollment in the new health insurance marketplaces established under the ACA. In addition, HHS added a call center to assist consumers at 1-800-318-2596. According to HHS Secretary Kathleen Sebelius, “The new website and toll-free number have a simple mission: to make sure every American who needs health coverage has the information they need to make choices that are right for themselves and their families….” The call center and website are intended to help consumers prepare for the new qualified health plans (QHPs) provided for in the ACA. Functionality will be added to the website in advance of the start of the October 1 open enrollment period.
Administration Announces Delay in Implementation of Key Healthcare Reform Provision (July 2013)
The White House announced that it will delay implementation of the Patient Protection and Affordable Care Act’s (ACA) employer mandate provision for one-year. The decision delays until January 2015 implementation of a key component of the ACA which requires employers with more than 50 employees to offer qualified health insurance coverage or face penalties. The delay does not impact the individual mandate established by the ACA.
In response to the delay announced by the Obama administration, at least three House committees have announced efforts to determine the legality of the Administration’s action. Concern has been raised by the Republican majority in the House that the manner in which the ACA was drafted precludes the President from delaying implementation of the program. The ACOI will continue to monitor this situation closely.
House Votes to Repeal the ACA (June 2013)
The House considered and approved H.R. 45 by a vote of 229-195 on May 16. The bill, which was approved along party lines, would repeal the ACA in its entirety. It is the 37th vote by the House to either fully or partially repeal the ACA. Prior to its approval, the Administration released a statement of administrative policy indicating that President Obama would veto the legislation should it make it to his desk. Due to the current composition of the Senate, it is unlikely that the similar legislation will be considered and advanced beyond the House.
Efforts to Repeal the ACA Continue (May 2013)
House Republicans pulled from the floor the “Helping Sick Americans Now Act” (H.R. 1549) when it appeared the legislation would not be approved by the House. Approved by the House Committee on Energy and Commerce along party lines, the legislation would have repeal a portion of the Patient Protection and Affordable Care Act (ACA, Pub. Law 111-152) by removing approximately $3.5 billion from the ACA’s Prevention and Public Health Fund to fund the Pre-Existing Condition Insurance Plan.
Conservative Republicans balked at the legislation and expressed concern that H.R. 1549 would lend credence to the ACA by not attempting to repeal it in its entirety. The White House released a statement of administration policy and indicated that it would veto H.R. 1549 if it was approved by Congress. Majority Leader Eric Cantor (R-VA) announced that legislation would be considered to repeal the entire ACA shortly. It is possible that a vote to repeal the ACA could occur as early as this month.
Coverage of Preventive Services Expands Under PPACA (April 2013)
According to a report recently released by the Department of Health and Human Services (HHS), approximately 71 million Americans in private health insurance plans received expanded coverage of one or more preventive services as a result of the PPACA in 2011 and 2012. The report also estimates that approximately 34 million Medicare beneficiaries received at least one preventive service as a result of the PPACA.
Essential Health Benefits Final Rule Released (March 2013)
The U.S. Department of Health and Human Services (HHS) issued the final rule establishing the essential health benefits (EHBs) that must be offered by individual and small group insurers beginning in 2014. The rule implements a provision of the Patient Protection and Affordable Care Act (ACA, Pub. Law 111-152). Under the rule, EHBs must include, at a minimum, items and services within the following areas: ambulatory patient services; emergency services; hospitalization; maternity and newborn care; mental health and substance use disorder services, including behavioral health treatment; prescription drugs; rehabilitative and habilitative services and devices; laboratory services; preventive and wellness services and chronic disease management; and pediatric services, including oral and vision care. Beginning in 2014, plans that cover EHB’s must cover a certain percentage of costs based on their designation as a bronze, silver, gold or platinum plan. The designations are intended to allow consumers the opportunity to compare plan options. You can learn more about EHBs by visiting www.healthcare.gov/news/.
CMS Reports Decline in Hospital Re-admissions (March 2013)
In testimony before the Senate Finance Committee, a representative of CMS stated that the hospital readmission rate dropped from an average of about 19 percent to 17.8 percent during the final quarter of 2012. The ACA established the Hospital Readmission Program under which Medicare payments are reduced to hospitals with high rates of readmissions. The program currently monitors readmissions for heart attacks, heart failure and pneumonia. Additional measures will be added in 2015. A physician value-based payment modifier will be applied to all physicians and groups by 2017.
CMS Report Finds Medicare Savings in ACA (February 2013)
According to its Second Annual Report, CMS reported that over 6.1 million Americans with Medicare Part D prescription drug coverage have saved over $5.7 billion in prescription drug costs since the enactment of the ACA. The same report found that approximately 30.5 million people with traditional Medicare have taken advantage of one or more free preventative services that became available in 2011. In addition, CMS noted that the agency has recouped $10.7 billion in fraudulent payments from 2009 to 2011. The full report and its findings are available at www.cms.gov.
2012
New CBO Report Expands Impact of PPACA Penalty (October 2012)
The non-partisan Congressional Budget Office (CBO) released a new report examining the impact of the penalty for not carrying health insurance coverage beginning in 2014, as required by the PPACA. The CBO estimates that approximately six million people will pay the penalty for not having health insurance coverage by 2016. This is an increase of nearly two million people from earlier CBO estimates. According to the CBO, the increase is due largely to the impact of the recent Supreme Court ruling upholding the PPACA coverage requirement but weakening the Medicaid expansion contained in the law, higher unemployment and other variables. It is estimated that the penalty will increase revenue by $7 billion in 2016 and about $8 billion per year from 2017 through 2022. The full report is available at www.cbo.gov.
Supreme Court Concludes Oral Arguments in Review of the PPACA (May 2012)
The Supreme Court concluded hearing oral arguments on the constitutionality of the “Patient Protection and Affordable Care Act” (PPACA, Pub. L. 111-148) on March 28. In the historic proceedings the Court departed from its standard allowance of one hour for oral arguments and heard a total of six hours in this groundbreaking matter. The case is now before the Court for its consideration.
In considering the constitutionality of the PPACA, the Court is reviewing three cases and four specific questions. The cases now before the Court are: Department of Health and Human Services, et al. v. Florida, et al. (11-398); National Federation of Independent Business v. Sebelius (11-393); and Florida, et al. v. Department of Health and Human Services (11-400). The questions before the Court are as follows: is the Court precluded from considering the matter because of the Anti-Injunction Act of 1867, which prevents consideration of a matter by a federal court prior to the collection of a tax; did Congress over-step its powers by creating the requirement for individuals to carry health insurance; did Congress exceed its powers in tying state receipt of Medicaid funding to a mandatory expansion of the program; and, is the individual mandate severable from the rest of the Act? While the Court can hand down its decision at any time, it is likely that this decision will not be handed down until the end of the current session in June. Audio recordings and transcripts of the proceedings are available at www.supremecourt.gov.
CBO Lowers Cost Estimate of PPACA (May 2012)
According to a new report released by the non-partisan Congressional Budget Office (CBO), in conjunction with the Joint Commission on Taxation (JCT), the cost estimate of the PPACA and its provisions has been reduced by about $50 billion over the next 10 years. According to the updated cost estimate, the PPACA will cost approximately $1.1 trillion and reduce the number of uninsured Americans by between 30 million and 33 million. The entire report is available at www.cbo.gov.
House Approves Repeal of CLASS Act (March 2012)
The House approved the “Fiscal Responsibility and Retirement Security Act of 2011” (H.R. 1173) by a vote of 267-159 on February 1. The legislation would repeal the “Community Living Assistance Services and Support Act” (CLASS Act). The CLASS Act was included in the PPACA to provide a daily cash benefit to participants who paid premiums for long-term care in the event of a disability. The Department of Health and Human Services (HHS) announced previously that the program would not be implemented due to budgetary constraints. Similar legislation has been introduced in the Senate. The Senate is not expected to act on the legislative proposals.
Supreme Court Denies Request to Join Oral Argument for Recusal of Justice (March 2012)
The U.S. Supreme Court denied a motion for leave to participate in the oral arguments in the legal challenges to the Patient Protection and Affordable Care Act (PPACA, Pub. L. 111-148). Specifically, Freedom Watch, a conservative group, filed a motion for leave to participate in the oral arguments as an amicus curiae (“friend of the Court”) to argue for the recusal or disqualification of Justice Elena Kagan. Concerns have been raised that Justice Kagan has a conflict of interest as a result of her role as U.S. Solicitor General during the negotiations of the PPACA. Questions have also been raised about Justice Clarence Thomas’ participation because of his wife’s efforts to repeal the PPACA. To date, neither Justice Kagan nor Justice Thomas has signaled any intent to recuse themselves from the case. Oral arguments are scheduled to take place March 26 – 28 with a decision being handed down in June.
. Dates Set for the Supreme Court to Hear Challenge to the PPACA (January 2012)
The U.S. Supreme Court announced that it will hear five-and-a-half hours of oral arguments in legal challenges to the Patient Protection and Affordable Care Act (PPACA, Pub. L. 111-148). The Court agreed to consolidate three cases and will address questions raised in Florida v. Department of Health and Human Services, National Federation of Independent Business v. Sebelius, and Department of Health and Human Services v. Florida. Oral arguments are scheduled to take place March 26 - 28.
The first hour of oral arguments will address whether the Anti-Injunction Act of 1867 (AIA) blocks a Commerce Clause challenge to the PPACA’s “individual mandate.” The AIA precludes courts from considering a matter prior to the assessment or collection of a tax. The individual mandate requirements set forth under the PPACA do not take effect until 2014. Two hours of oral arguments are scheduled for March 27 to examine the constitutionality of the individual mandate. Finally, two-and-a-half hours of oral arguments are scheduled for March 28 to explore the severability of the individual mandate as well as the constitutionality of the Medicaid expansion contained in the PPACA. The oral arguments will consume the Court’s entire schedule for the week. A ruling is expected as early as June.
2011
Supreme Court Agrees to Hear ACA Challenge (December 2011)
The U.S. Supreme Court announced that it will hear legal challenges to the Patient Protection and Affordable Care Act (PPACA, Pub. L. 111-148). The Court agreed to hear legal questions presented in the case of Florida v. Department of Health and Human Services. The case was brought by the State of Florida and joined by 25 other states, the National Federation of Independent Business and two individuals. The U.S. Court of Appeals for the Eleventh Circuit in a 2-1 decision found the “individual mandate” to be unconstitutional on August 12.The majority found that the commerce clause of the Constitution does not allow the Federal government to “mandate that individuals enter into contracts with private insurance companies for the purchase of an expensive product from the time that they are born until the time that they die.”
Oral arguments are expected to take place in March with a decision being handed down as early as June, 2012. Recognizing the gravity and complexity of the issues presented, the Supreme Court has allotted five-and-a-half hours for oral arguments. Generally, the Court allows just one hour for oral arguments per case. While cameras are not generally permitted in the Supreme Court during proceedings, several requests have been made asking the Court to allow television coverage of oral arguments in this matter. The Court has not provided an indication as to how it will respond to the request.
House Committee Approves Repeal of CLASS Program (December 2011)
The House Committee on Energy and Commerce reported out the “Fiscal Responsibility and Retirement Security Act of 2011” (H.R. 1173) by a mostly party-line vote of 33 to 17 on November 30. H.R. 1173 would repeal the Community Living Assistance Services and Supports (CLASS) program established under the PPACA. The vote came on the heels of the Department of Health and Human Services announcing that the program was not financially sustainable. Republicans have said that repeal of the program is necessary to prevent the Administration from reviving the program in the future. Consideration of the legislation by the full House has not been scheduled. The CLASS program was the first federally-sponsored long- term care program available to working adults.
ACA Continues to Work its Way Through the Court System (November 2011)
The U.S. Court of Appeals for the Fourth Circuit recently issued two opinions that set back efforts to have the Patient Protection and Affordable Care Act (ACA, Pub. L. 111-148) ruled unconstitutional. In the case of Liberty University Inc. V. Geithner, the court declared it has no jurisdiction to hear the case as a result of the Tax Anti-Injunction Act (AIA). The AIA states that, “No suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person.” As such, the court said the AIA “divests federal courts of subject-matter jurisdiction.” The court went on to say that it was irrelevant that Congress labeled the mandate a “penalty” rather than a tax. The court suggested that had Congress intended to allow pre-enforcement challenges of the individual mandate, it could have amended the AIA through the ACA to allow such a challenge to go forward. The U.S. Court of Appeals for the Fourth Circuit was the first court to apply the AIA to challenges to the constitutionality of the ACA.
In Virginia ex rel. Cuccinelli v. Sebelius, the court unanimously ruled the Commonwealth of Virginia did not have standing to challenge the constitutionality of the individual mandate. The court said that the mandate did not apply to the state and thus could not demonstrate that it would suffer an injury with the implementation of the mandate. This is a significant setback for the Commonwealth of Virginia case.
As previously reported, there remains a split between the U.S. Court of Appeals for the Sixth Circuit and the U.S. Court of Appeals for the Eleventh Circuit. The Supreme Court is scheduled to discuss how it will handle challenges to the ACA in a closed-door conference on November 11. An announcement could be made as early as November 14. It appears likely that the Court will consider the constitutionality of multiple provisions of the ACA.
Supreme Court Likely to Review Constitutionality of ACA (August 2011)
The U.S. Court of Appeals for the Eleventh Circuit in a 2-1 decision found the “individual mandate” of the ACA to be unconstitutional on August 12. The court stopped short of declaring the entire law unconstitutional. The majority found that the commerce clause of the Constitution does not allow the Federal government to “mandate that individuals enter into contracts with private insurance companies for the purchase of an expensive product from the time that they are born until the time that they die.” The case, Florida v. Department of Health and Human Services, was brought by 26 states and has been viewed as a likely candidate for the U.S. Supreme Court to consider the constitutionality of the ACA. As a result of the ruling, there is now a divide within the U.S. Court of Appeals. The U.S. Court of Appeals for the Sixth Circuit in a 2-1 decision upheld the constitutionality of the individual mandate in Thomas More Law Center v. Obama on June 29. As such, it is nearly certain that the U.S. Supreme Court will step in to resolve the split between the circuits. The U.S. Supreme Court is currently in recess and will begin its next term in October.
US Appeals Court Upholds Constitutionality of Affordable Care Act Provisions (July 2011)
The U.S. Court of Appeals for the Sixth Circuit upheld the constitutionality of the Affordable Care Act’s individual mandate on June 29. In the case of Thomas More Law Center v. Obama, Thomas More Law Center argued that the ACA was not a valid exercise of Congress’ authority under the commerce clause of the Constitution. The argument has been made in many of the cases challenging the constitutionality of the ACA. The majority of the Sixth Circuit stated that the individual mandate, “falls within Congress’ power to regulate activities that substantially affect interstate commerce.” Judge Jeffrey S. Sutton, an appointee of George W. Bush, stated, “Call this mandate what you will—an affront to individual autonomy or an imperative of national healthcare—it meets the requirement of regulating activities that substantially affect interstate commerce.”
To date, this is the highest court to issue a decision in the cases challenging the constitutionality of the ACA. Two more appellate-level decisions are expected in the coming months. It appears that the cases will make their way before the Supreme Court during its 2011-2012 term with a decision being handed down by June 2012.
National Prevention Strategy Released (July 2011)
The White House released the National Prevention and Health Promotion Strategy on June 16. The Strategy is intended to increase the overall health of all Americans. The Strategy was developed by the National Prevention Council, which consists of 17 federal agencies. According to a release by the Department of Health and Human Services the federal agencies consulted with both outside experts and stakeholders.
The Strategy, called for under the ACA, is intended to transform the healthcare delivery system away from a focus on sickness and disease to a focus on prevention and wellness. The following four strategic directions are laid out in the plan: building healthy and safe community environments; expanding quality preventive services in both clinical and community settings; empowering people to make healthy choices, and eliminating health disparities. Seven priority areas are as follow: tobacco free living; preventing drug abuse and excessive alcohol use; healthy eating; active living; injury and violence-free living; reproductive and sexual health, and mental and emotional wellbeing. You can learn more about the Strategy at www.healthcare.gov/center/councils/nphpphc/index.html.
Affordable Care Act Continues its Way through the Court System (May 2011)
The U.S. Supreme Court rejected a request by the Commonwealth of Virginia for expedited consideration of Commonwealth of VA v. Kathleen Sebelius on April 25. The U.S. District Court for the Eastern District of Virginia upheld the ACA but invalidated the requirement that individuals carry health insurance coverage. As a result, the U.S. Court of Appeals for the Fourth Circuit will now proceed to oral arguments. The Supreme Court’s decision to deny an expedited review was not unexpected. The path to the Supreme Court for a challenge to the ACA continues to take shape. To date, both the Eastern District of Virginia and the U.S. District Court for the Northern District of Florida have found the individual mandate created by the ACA to be unconstitutional. Three other courts have upheld the constitutionality of the ACA. Appeals are currently pending in the U.S. Courts of Appeals for the 6th, 11th and the District of Columbia Circuits. ACOI Joins Partnership for Patients
House Approves Legislation to Repeal Parts of the Affordable Care Act (May 2011)
The House continued efforts to repeal the ACA by approving H.R. 1213 and H.R. 1214 by votes of 238 – 183 and 235 – 191, respectively. H.R. 1213 would eliminate federal spending on grants to help states establish insurance exchanges. H.R. 1214 would eliminate mandatory funding for the construction of school-based health centers. The ACA provided $50 million a year for four years for the construction of the school-based health centers. While both H.R. 1213 and H.R. 1214 were approved by the House, it appears unlikely that they will be considered by the Senate. In fact, the White House has stated that H.R. 1213 would face a veto should it make it to the President’s desk.
Federal Courts Continue to Consider the Constitutionality of the Health Care Reform Act (March 2011)
The U.S. government has appealed the U.S. District Court for the Northern District of Florida’s ruling in the case of State of Florida v. US Department of Health and Human Services. As previously reported, the court held the “Patient Protection and Affordable Care Act” (ACA, Pub. L. 111-148) is unconstitutional in its entirety. The appeal moves this case one step closer to the Supreme Court. In a separate decision, the U.S. District Court for the District of Columbia dismissed a lawsuit brought by individual plaintiffs who claimed the ACA individual mandate violated the Constitution. In the case of Mead v. Holder, the court ruled that the ACA was constitutional under the commerce clause of the Constitution. The judge found that the ACA regulates an activity that substantially affects interstate commerce. As such, the court ruled that the ACA does not violate the Constitution and Congress acted within its powers.
Federal Courts Continue to Consider the Constitutionality of Health Reform Act (February 2011)
Two recent decisions have held that all or part of the ACA is unconstitutional. Each decision moves this issue closer to consideration by the Supreme Court.
In the case of Commonwealth of Virginia v. Kathleen Sebelius, U.S. District Court Judge Henry E. Hudson stated that the “Minimal Essential Coverage Provision” “exceeds the constitutional boundaries of congressional power.” Specifically, the court struck down the provision that requires individuals to carry a minimum amount of health care insurance unless they qualify for one or more of the exceptions established in the ACA (the individual mandate). At issue is whether the Commerce Clause of the Constitution can be used to require an individual to purchase a minimum level of health insurance. Prior to the ruling issued by Hudson, other federal courts found the provision in question to be constitutionally sound. Importantly, Judge Hudson struck down only one provision of the ACA.
In the case of State of Florida v. US Department of Health and Human Services, Judge Roger Vinson also found the law to exceed Congress’ authority under the Commerce Clause. He went as far as to find that the individual mandate provision of the ACA is not severable from the law as a whole, and as such, he found the entire law to be unconstitutional. Judge Vinson went further than Judge Hudson and also ruled that the ACA could not be saved by applying the Necessary and Proper Clause of the Constitution. There are 26 states that are part of the Florida lawsuit. The ACA remains on track to go before the Supreme Court sometime before the 2012 elections.
House Approves Legislation to Repeal Affordable Care Act (February 2011)
The House approved the “Repealing the Job-Killing Health Care Act” (H.R. 2) by a vote of 245-189 on January 19. The vote to completely repeal the ACA was along party lines with three Democrats voting for the bill. According to the non-partisan Congressional Budget Office (CBO), repeal of the ACA would increase the federal budget deficit by $145 billion from 2012 through 2019 and by $230 billion from 2012 through 2021. The Senate is not expected to consider H.R. 2.
Following approval of H.R. 2, the House approved a resolution (H.Res. 9) that instructed all committees with jurisdiction to consider alternatives to help lower healthcare premiums, protect the doctor-patient relationship, and give states more flexibility to run their Medicaid programs. In response to the adoption of the resolution, the House Judiciary Committee acted first and approved the “Help Efficient, Accessible, Low-cost, Timely Healthcare Act” (H.R. 5) by a vote of 18-15 on February 16. The legislation would create a $250,000 cap on non-economic damages, among other things. H.R. 5 is similar to the California medical liability reform model and legislation considered and approved by previous congresses. It appears unlikely that the Senate will consider H.R. 5 or similar legislation.
2010
Florida Challenge to Healthcare Reform Act Moves Forward (December 2010)
A federal judge in Florida refused to dismiss claims challenging the constitutionality of select provisions of the ACA on October 14. The suit under consideration by the court was brought by 20 states and the National Federation of Independent Business. Specifically, the senior US District Court Judge for the Northern District of Florida ruled that the case may go forward to examine the constitutionality of the individual mandate and the expansion of Medicaid created under the ACA. The judge did dismiss the states’ claims challenging the constitutionality of the employer mandate and the creation of state-based insurance exchanges finding that they did not create legitimate constitutional questions. This case is just one of several cases brought across the country challenging the constitutionality of the healthcare reform law. The American College of Osteopathic Internists continues to monitor this and other cases.
Supreme Court Refuses to Hear California Challenge to Health Care Reform Act (December 2010)
The United States Supreme Court refused to hear a constitutional challenge brought in response to the ACA. Specifically, a former Republican state lawmaker from California asked the Court to consider his suit after a federal appeals court decided he did not have standing to challenge the constitutionality of the individual mandate established in the healthcare reform law. His case is still pending before the 9th Circuit Court of Appeals. It is common for the Supreme Court to refuse to hear cases that are still pending in lower courts. As previously noted, there are a number of cases working their way through the federal court system. The US Supreme Court will likely consider the constitutionality of certain provisions of the ACA within the next few years. To date, many of the legal arguments have asked whether Congress overreached the powers provided for in the Commerce Clause of the Constitution.
$320 Million in Grant to Expand Primary Care Workforce Announced (October 2010)
The Department of Health and Human Services (HHS) announced grants totaling $320 million to strengthen the healthcare workforce on September 27. The grants were made available through the ACA. Specifically, $253 million of the grant money will go to the following six health professions programs: $167.3 million for primary care and residency expansion; $30.1 million for the expansion of physician assistant training; $14.8 million for nurse managed health clinics; $5.6 million for state health workforce development; and, $4.2 million for personal and home care aide state training. The remaining $67 million will go toward Health Profession Opportunity Grants to provide low-income people with education, training and support services for jobs in healthcare.
IRS Posts Healthcare Reform Rules for Employers (August 2010)
The “Patient Protection and Affordable Care Act” (PPACA)(Pub.L. 111-148) requires employers to report the value of the health insurance coverage they provide to employees on each employee’s annual W-2 Form beginning with the 2011 tax year. According to the Internal Revenue Service (IRS), the information is for informational purposes only so that employees are aware of the value of their healthcare benefits. The amount reported does not affect tax liability. Additional information is available at www.irs.gov
House Energy and Commerce Committee Approves Healthcare Legislation Prior to Recess (August 2010)
Prior to the August recess, the House Committee on Energy and Commerce reported out multiple healthcare bills. The legislation considered by the Committee would help military veterans become emergency medical technicians; extend the protections provided by the Federal Tort Claims Act to licensed health providers who volunteer at community health centers; and, reauthorize the National All Schedules Prescription Electronic Reporting Act, among other things. The bills now await consideration by the full House. It remains uncertain when the House will consider this legislation.
Case Challenging the Constitutionality of the Healthcare Reform Law May Go Forward (August 2010)
As reported earlier, there will be a number of lawsuits challenging provisions of the “Patient Protection and Affordable Care Act” (PPACA)(Pub.L. 111-148). One of the first suits, brought by the Attorney General of the Commonwealth of Virginia, has been permitted to go forward. A federal district court judge refused to dismiss the lawsuit challenging the constitutionality of the healthcare reform law.
The judge for the U.S. District Court for the Eastern District of Virginia found that the Virginia had sufficiently demonstrated standing to challenge the law. Specifically, Virginia is challenging the constitutionality of requiring individuals to buy insurance. In allowing the case to go forward the judge stated, “While this case raises a host of complex constitutional issues, all seem to distill to the single question of whether or not Congress has the power to regulate and tax a citizen’s decision not to participate in interstate commerce. Neither the U.S. Supreme Court nor any circuit court of appeals has squarely addressed this issue.” The ACOI will continue to closely monitor this and other cases that arise out of enactment of the PPACA.
Patient Bill of Rights Released (July 2010)
Interim final rules implementing certain consumer protections contained in the "Patient Protection and Affordable Care Act" were issued on June 22. The rules are effective August 27. Under the new "Patient Bill of Rights" insurance companies are prohibited from imposing pre-existing condition exclusions on children, prevention policy rescissions for unintentional mistakes on an application for insurance coverage, may not set lifetime limits on coverage and the use of annual limits on coverage, is restricted, among other things. You may view a fact sheet on the "Patient Bill of Rights" at www.whitehouse.gov/sites/default/files/Consumer%20reg%20Fact%20Sheet.pdf.
The Congressional Budget Office (June 2010)
(CBO), which is the non-partisan body that estimates the cost of legislation for Congress, has said that the PPACA will reduce the federal deficit by $138 billion from 2010 through 2019. While there are competing estimates, the actual costs of the PPACA will become clearer as the healthcare reform law is implemented over the next few years.
New Analysis on Healthcare Reform Costs Released (June 2010)
According to a report released by the Centers for Medicare and Medicaid Services’ Chief Actuary, Richard S. Foster, the PPACA will increase total national healthcare spending by $311 billion over the next 10 years. The increase is in part the result of providing coverage to over 34 million Americans who now lack coverage. The analysis does not take into consideration provisions of the PPACA that increase revenues. The United States now spends about $2.5 trillion on healthcare annually.
New Healthcare Reform Law Materials Available to ACOI Members (June 2010)
The signing into law of the “Patient Protection and Affordable Care Act†(PPACA)(H.R. 3590)(Pub.L. 111-148) ushered in fundamental changes to the healthcare delivery system. In an effort to keep you abreast of changes that impact the practice of medicine, the ACOI has created an online resource that contains information related to the implementation of the PPACA. The resources are available at www.acoi.org under the “Government Affairs†tab. The resource will be updated as regulations are promulgated to implement the Act. Any questions or comments should be directed to Tim McNichol at the address above.
Health Care Reform Legislation Signed into Law (April 2010)
History was made when President Obama signed into law the “Patient Protection and Affordable Care Act†(PPACA)(H.R. 3590)(Pub.L. 111-148) on March 23. The signing of the PPACA into law was the culmination of over a year of debate and political wrangling.
H.R. 3590 was first introduced in the House as the “Service Members Home Ownership Tax Act of 2009†on September 17, 2009. It was approved under suspension of the rules by a vote of 416-0 and sent to the Senate for consideration. The Senate amended the bill stripping the original legislative language and inserted the text of the “Patient Protection and Affordable Care Act.†In a rare Christmas Eve vote, the Senate approved H.R. 3590 as amended by a vote of 60-39. The House agreed to the Senate amendments by a vote of 219-212 on March 21. The legislation was approved in both chambers along party-lines.
As part of the negotiations to attain the needed votes in the House to approve the Senate-passed H.R. 3590, the House moved and approved a “corrections†package to further amend the health care reform package once it was signed into law. The corrections package, entitled the “Healthcare and Education Reconciliation Act of 2010†(H.R. 4872), was signed into law on March 30.
The non-partisan Congressional Budget Office estimates the PPACA and H.R. 4872 will cost $938 billion over ten years. Further, the CBO estimates that the combined bills will reduce the federal deficit by $118 billion over the same time period. Click here for a summary of the key provisions of the PPAC as amended. Additional information will be made available at www.acoi.org as regulations are advanced to implement the legislation.
Televised Healthcare Reform Talks Scheduled (February 2010)
In an effort to advance healthcare reform legislation, President Obama scheduled a televised bi-partisan healthcare reform summit on February 25. The Administration said it is hosting the meeting in an effort to move forward on comprehensive healthcare reform legislation. Critics have expressed concern that the meeting will be void of any meaningful effort to find true compromise. President Obama is looking to modify the proposals that have been advanced to date in an effort to sign legislation into law before the end of the year. The election of Senator Scott Brown and the approaching mid-year elections are certain to complicate these efforts. The political tenor of the debate suggests that it is going to be difficult to find a common ground from which to work that would appeal to conservatives, liberals, moderates and others on both sides of the aisle.
Health Care Reform Package Approved by the Senate (January 2010)
After 25 consecutive days of being in session, the Senate approved the "Patient Protection and Affordable Care Act" (H.R. 3590) with amendment on December 24 by a vote of 60-39. The last time that the Senate conducted a roll call vote on Christmas Eve was 1895.
Approval of H.R. 3590 in the Senate follows the House's adoption of the "Affordable Health Care for America Act" (H.R. 3962) approved on November 7 by a vote of 220-215. The two chambers must work to merge the different provisions of H.R. 3962 and H.R. 3590 into one conference report that can garner enough votes to pass both the House and Senate. Many barriers remain in the effort to produce a final bill that can obtain the support needed to send a package to the President's desk for his signature. The issues of abortion and how to pay for the legislation remain key sticking points. Negotiations are ongoing.
The status of the health care reform debate in the Senate continues to change. For the most current news and information you may sign up for the ACOI government affairs listserv at www.acoi.org/InteractListerve.html. In addition, if you have any questions or concerns you may contact Tim McNichol directly at tmcnichol@acoi.org or by calling 1-800-327-5183.