How The ACA Survival Could Affect You

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Crystal BallMaybe next year will be just another confusing version of the past years? Analysts of the Congressional Budget Office continue to predict how the next new bill might… change federal revenue and spending, the number of people with health coverage, and the overall state of the commercial health insurance market over the next 10 years.

The analysts will do their best to compare their bill projections as they occur based on the assumption that the Affordable Care Act will stay in place.

Of course, the Affordable Care Act has very often worked differently than drafters, implementers and budget analysts expected.

In November 2008, for example, analysts at a PricewaterhouseCoopers think tank predicted that the health system changes the Obama administration had proposed would help cover about 30 million uninsured people at an average cost of $2,500 per individual.

Between 2013 and 2017, the Affordable Care Act Medicaid expansion program, the premium tax credit subsidy program, the cost-sharing reduction subsidy program and the ban on medical underwriting have helped cut the number of uninsured people by 13 million.

The federal government spent about $66 billion on Medicaid expansion support for states in 2016. Milliman [an actuarial firm] estimates the federal government spent about $14 billion on the premium tax credit subsidy program and the cost-sharing reduction subsidy program in 2016. Actual federal Affordable Care Act subsidy spending amounted to $80 billion, for an actual 2016 average of about $6,000 per newly insured individual.

Republicans, over the past several months, have attempted to pass a budget bill that would repeal many Affordable Care Act taxes and penalties, and replace the existing subsidy programs with new state grant and tax credit subsidy programs.

It’s possible that the Republican efforts to change the Affordable Care Act could fade away, and the Affordable Care Act could stay on the books, more or less as is.

Here are two thoughts about how the Affordable Care Act could possibly change life for individuals and employers in 2018, just by continuing to be “the law of the land.”

  1. Knowing the rules in any given market could be more difficult.

One of the guiding principles floating in the air when policymakers were working on health system change proposals from 2000 through 2009 was that by making state insurance rules more uniform it would help reduce compliance costs.

The Affordable Care Act eliminated state-to-state differences in underwriting rules and greatly reduced differences in benefits package rules, but it added new types of differences. Since January 2014, when major Affordable Care Act rules took effect, some states have had state-based Affordable Care Act exchange programs, and some have had exchange programs operated by the U.S. Department of Health and Human Services’ system. Some states have helped HHS implement the Affordable Care Act major medical standards rules. Other states have refused to have much, or anything, to do with enforcing the Affordable Care Act standards.

Under the administration of former President Barack Obama, efforts by HHS to ease some Affordable Care Act rules without wrestling rule changes through Congress increased state-to-state differences.

Obama signed the main Affordable Care Act bill into law March 23, 2010. A “grandfathering” provision in the law explicitly let people hold on to individual major medical policies that were in effect on March 23, 2010. However, some consumers said they should also be able to keep any policies they bought between March 23, 2010 and January 1, 2014 [when other laws became effective].

The Centers for Medicare and Medicaid Services, the HHS arm in charge of running the Affordable Care Act commercial health insurance programs, took a sideways approach in handling that controversy.

CMS did not persuade Congress to pass a new law and did not develop a formal regulation.

Instead, in November 2013, CMS issued a memo saying it would refrain from enforcing certain Affordable Care Act standards. CMS said it would look the other way if a state let insurers keep individual policies written from March 23, 2010 to January 1, 2014. The non-enforcement memo gave each state the freedom to do what it wanted about “transitional” policies, which are also known as “grandmothered” policies.

The method CMS used to create individual policy grandmothering set an important precedent: One way to change how the Affordable Care Act works is to let states go their own way.

In other cases, CMS worked with the Internal Revenue Service and the Employee Benefits Security Administration to revise and remove Affordable Care Act rules by issuing different types of “informal guidance,” including memos, rulings on specific proposals, and batches of answers to frequently asked questions.

If the current Affordable Care Act framework stays intact, and the Trump administration tries to operate within that framework as well as it can, Trump’s CMS may end up dealing with Affordable Care Act controversies and operational problems by issuing its own non-enforcement letters, and its own batches of informal guidance that give states more freedom.

Trump’s HHS has already notified states that it wants to make the Affordable Care Act Section 1332 waiver program, which lets states apply to adjust some Affordable Care Act rules, as flexible as possible.

Trump’s CMS has told states that it wants to find ways to defer more to state insurance regulators. CMS has already decided to rely more on state insurance regulators’ efforts to review 2018 rates, instead of conducting its own reviews.

The Trump administration efforts to give states more flexibility could lead to programs and rules that do a better job of meeting local needs.

One possible drawback is that keeping track of what the rules are in each state could become more complicated. 

Another possible drawback is that even knowing what the rules are in any given state could take more effort. The Obama administration, for example, posted important batches of informal guidance in many different formats, on many different websites. Hence, insurance companies, employers and compliance lawyers had to scramble to figure out where to look for guidance. 

  1. Government-run health plan programs could displace ordinary individual major medical coverage in some markets.

Congress has taken so long to enact changes to the current Affordable Care Act framework, or to postpone making major changes, that it has left health insurance and managed care companies almost no time to implement any changes, or even to come up with individual major medical products and rates for 2018 based on the idea that the current framework might stay pretty much the same.

Meanwhile, the open enrollment period for 2018 is set to begin November 1, 2017.

The current CMS issuer map shows that most people in the United States could be able to buy individual exchange plan coverage from at least one insurance company in November, but the coverage supply appears to be fragile.

Many counties are on track to have just one exchange plan issuer. If issuers dislike what they see happening in Washington, they can opt [and are opting] to pull their 2018 products out of

If Congress leaves the Affordable Care Act intact, and it also approves funding for the cost-sharing reduction subsidy program [a major Affordable Care Act subsidy program for low-income exchange plan buyers] issuers might be able to rush into the 2018 open enrollment period with the products they have already filed with regulators.

On the other hand, if Congress leaves the Affordable Care Act framework intact, but it fails to fund the cost-sharing reduction subsidy program or other stabilization funds, issuers could have trouble adapting to the new market conditions by November 1. Issuers may have no choice but to pull products off the shelves.





Many Doctors Say Opioids Are Not The Answer

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Man and family memberPeople who have experienced pain, especially gnawing, chronic pain, know that it affects their happiness, outlook and the ability to function. 

In the past couple of years, the treatment of chronic pain has undergone an earthshaking transformation as opioid addiction continues to claim — and ruin — lives.

Many primary care doctors no longer liberally prescribe opioid painkillers such as oxycodone, fentanyl and hydrocodone for back pain, migraines and other chronic conditions. Instead, they are increasingly turning to alternative medications and non-drug options such as acupuncture and physical therapy.

“Most primary care doctors are afraid to do pain management because of the opioid backlash,” says Michael McClelland, a health care attorney in Rocklin, Calif., and former chief of enforcement for the state Department of Managed Health Care. “Either they don’t prescribe anything, and the patient remains in pain, or they turn them over to pain management specialists so someone else is writing that prescription.”

As a result, McClelland says, “people in genuine pain are going to find it more difficult to get medicine they may well need.”

Anita A., who asked that her full name not be used to protect her family’s privacy, says that happened to her father, Fred, when they moved from Maryland to the Sacramento area in November 2016.

Her father, 78, suffers from back pain that two surgeries did not alleviate. For more than a decade, he took opioid medications under the supervision of pain specialists in Maryland. He has tried “every other medicine,” in addition to acupuncture, nerve block injections and more, but the opioids worked best to control his pain, she says.

“He doesn’t take more than he needs and he’s not seeking to take more,” Anita says.

But in California, two pain specialists declined to see her father, saying his case was too complex. Finally, a primary care physician referred him to a different pain specialist, who saw him in January 2017, three months after starting the quest.

“It’s frustrating,” Anita says. “You get the sense that the medical society is treating everyone as a potential addict.”

A year ago, the Centers for Disease Control and Prevention issued new guidelines for primary care doctors prescribing painkillers for chronic pain, which did not apply to patients receiving active cancer, palliative or end-of-life care. The guidelines recommend doctors to first prescribe non-opioid medications, such as ibuprofen and acetaminophen, and urge non-drug treatments such as physical therapy.

When opioids are used for acute pain, such as that caused by injury, the guidelines suggest doctors prescribe the lowest-effective dose for the shortest-possible time — often three days.

In California, a statewide database known as CURES records opioid prescriptions. Last year, Govenor Jerry Brown signed a bill that requires prescribers to check the database and see if their patients have received these drugs from other doctors.

Opioids are highly addictive, and over time patients need higher dosages to achieve the same pain relief because their bodies develop a tolerance to the drugs.


“We don’t have any evidence to support the use of daily opioid therapy beyond about three months for chronic, non-cancer pain,” says Dr. Ramana Naidu, an anesthesiologist and pain management specialist at the University of California, San Francisco. “All of these individuals who have been on opioids for many years  have been doing so without any support from medical literature and science.”

Long-term use also comes with a plethora of possible and unpleasant side effects: constipation, confusion, low testosterone, difficulty urinating, weakened bones and more. And in a counterintuitive twist, opioids can make patients more sensitive to pain.

In some specific circumstances and at a low dosage, opioids can be used over the long term for chronic conditions when “patients have improved quality of life and function, no side effects and no concerns about misuse, abuse or addiction,” Naidu says. But in those cases, he requires his patients to take a “vacation” from opioids every two to four months.

As the Centers for Disease Control and Prevention guidelines recommend, pain specialists are now looking to non-opioid medications plus a variety of non-drug treatments to help patients with chronic pain. These include acupuncture, massage, yoga and visits to pain psychologists.

Penney Cowan, founder and CEO of the American Chronic Pain Association, based in Rocklin, worries that some doctors are not treating their patients as individuals with unique needs. She’s hearing from members whose primary care physicians are simply refusing to refill their opioid prescriptions. 

Liz Helms, president and CEO of the California Chronic Care Coalition, believes some people in chronic pain should be able to get opioids as long as their use is carefully managed by physicians. “That doctor-patient relationship is key to ensuring that someone stays out of pain so they can function,” Helms says. 

Clearly, there is disagreement between some doctors and patients. If a patient finds themselves in the middle and in pain, here are a few suggestions:

First, a patient will need to accept that drugs, especially opioids, are not going to be the cornerstone of pain management and be open to other options, whether it’s alternative medications or other therapies.

“It’s harder work and not the quick fix of opioids, but in the long run, they are better for good health,” says Dr. C.Y. Angie Chen, an assistant clinical professor at Stanford Medical School who specializes in addiction medicine.

Second, it pays to be honest with the doctor and ask questions. If the doctor suggests no more opioids, ask the doctor to explain how he/she plans to decrease the medication.

And if a patient has not yet contacted a pain management specialist, request a referral. Cowan suggests talking with the pharmacist as well. “Pharmacists are the most accessible of all,” she says. “They can provide useful information about medications.”

Take a look at the “Pain Management Tools” section of the American Chronic Pain Association’s website for more resources, or call 800-533-3231. Ask about the support groups the organization sponsors.

Call the California Chronic Care Coalition at 916-444-1985 or visit its My Patient Rights website at

Finally, Dr. Chrystina Jeter, clinical instructor of pain medicine at UCLA Health, wants people to know that she and other pain physicians are ready to help, even if a patient does not agree with their decisions to change a treatment plan.

“If I tell a patient they have to taper the opioids or that I can no longer prescribe  opioids, it’s not because I want to cause discomfort or that I do not care,” she says. “My primary job is to keep a patient safe, and I have a lot of evidence now to suggest that the prescribing habits of 10 years ago were not in patients’ best interest in the long run.”

Long-Term Care At Home Without Breaking The Bank

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Couple on bridge

The vast majority of older adults choose to receive long-term care at home and not in nursing homes. But many people forget to make plans for this very important expense.

Nor do they see long-term care insurance as a viable option — because it is expensive and often seen as protection against the cost of only nursing home care.

That should change, some experts contend. If the long-term care insurance industry focused more on helping people cover home-based services, they argue, policies would be more affordable, and potentially appealing.

Long-term care, for most people, is a home care problem. It makes sense to insure people for the likelihood of where care is going to be needed first — which is at home.

Genworth, one of the nation’s leading long-term care insurers, acknowledged that this position is supported by industry claims data.

“Primarily, we are seeing people utilizing home care and a smaller percentage using nursing home care,” said Beth Ludden, Genworth’s senior vice president for long-term care insurance products.

“People think, ‘While I might start out needing care at home, eventually I’ll need to be in a facility,’” Ludden continued. “But that’s not something we see in our data. For the most part, people are able to stay at home for the whole time.”

Currently, more than 6 million older Americans are thought to have a “high need” for long-term care, according to a report from the U.S. Department of Health and Human Services. That’s defined as requiring daily assistance with two activities (eating, bathing, toileting, dressing, continence or transferring from a bed to a chair) that lasts at least 90 days or a need for substantial assistance due to severe cognitive impairment.

About 52 percent of adults reaching age 65 today will need these services — 26 percent for two years or less; 12 percent for two to four years; and 14 percent for more than five years, the HHS report projected.

Yet fewer than 10 percent of older adults have purchased long-term care insurance, which has somewhat declined in popularity as premiums skyrocketed and insurers exited the market over the past decade. Whether the industry can fix its major problem — affordability — remains to be seen.

From a consumer’s perspective, if the goal is covering several years of home-based care, not nursing home care, a person can purchase a less expensive policy without all the bells and whistles that drive up costs.

A 55-year-old couple buying a policy of this kind — say, $4,000 a month in benefits for each person, for a maximum of three years, with a 1 percent compounded annual inflation protection provision — from a major insurance company would pay $2,380.05 a year in premiums. It’s common for policyholders to pay premiums for 10 or 20 years before claiming benefits. Terms are similar in most states.

How much help in the home might this policy provide?

According to 2016 data compiled by Genworth, the average annual cost for care provided by a home health aide was $46,332, compared with $82,128 for a semiprivate room in a nursing home. That translates into $3,861 a month, for 44 hours of home care a week — the equivalent of slightly more than six hours of care, seven days a week.

That might not be enough for seniors with serious, disabling illnesses, but it can provide much-needed relief to unpaid family caregivers who could otherwise be on call nonstop.

What happens if someone ends up needing nursing home care?

People might consider what is known as a “qualified long-term care partnership policy” — a plan available in every state except Alaska, Hawaii, Illinois, Massachusetts, Mississippi, New Mexico, Vermont and Washington, D.C. 

These little-known insurance products are designed to help consumers preserve their assets if they become seriously ill, need nursing home care and seek to become eligible for Medicaid, which pays for nearly half of nursing home costs in the U.S.

To qualify for Medicaid, most states require that an individual have no more than $2,000 in assets; couples are allowed to have up to about $120,000, so that a well spouse does not become impoverished. With a partnership policy, every dollar received in long-term care benefits is exempted from Medicaid’s asset test and protected from seizure by the state.

In other words, if you get $200,000 in benefits from a partnership policy and your state has an asset limit of $2,000 for Medicaid, you can keep $200,000 in assets plus the $2,000 allowed and still meet your state’s asset test.

Partnership policies do not guarantee Medicaid eligibility and a person would still have to meet whatever income standards their state sets for Medicaid. (Many, but not all states, allow people to “spend down” to qualify, using their income to pay for institutional care.)

Alan, 61, of Las Vegas, purchased a partnership policy three years ago because it allows him to retain control of his financial assets, even if he needs caregiver services. Another plus: The policy permits him [if he decides to stay at home] to take a certain amount of the monthly amount and give it to someone he chooses to provide care for him, even if that person is a family member.

There is no reliable national data about how many people with partnership policies end up going on Medicaid to cover nursing home care. Nor is there good data about the number of these policies that have been sold or the benefits paid out to date.

David Guttchen, who directs the Connecticut Partnership for Long-Term Care, the first such program in the country, is skeptical about policies with benefits that will cover only a portion of expected costs. (Four states, including Connecticut, were the first to launch partnership programs and have special rules.)

“A person absolutely needs to know what the average home care and nursing home costs are for their state, to get a sense of what the exposure might be,” he said. “If you don’t buy meaningful benefits, you’re wasting your premium.”

If a person is able to cover a good amount of home care but the policy does not cover nursing home care, some protection is gained, for a while, but a person could still pay an enormous amount out-of-pocket going forward, if Medicaid is not an option.

It’s a gamble because people cannot be sure what kind of care they will need in the future, or for how long, or what the future of Medicaid will offer. Before buying any policy, consult with an elder law attorney and an independent insurance adviser.