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.





A New Era of Physician Accountability

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Doctor PhotoWith the implementation over the next few years of the Medicare Access and CHIP (Children’s Health Insurance Program) Reauthorization Act, including the gradual build-out of ‘Physician Compare‘, a consumer website lauched by the Affordable Care Act, we are entering a new era of physician accountability. 

MACRA is a quality measurement and payment system for physicians who treat Medicare patients. Beginning in 2019, physician payment will be much more tightly tied to quality and performance measures.

With the attention to the inefficiencies of physician payment, MACRA may trigger a “disruptive innovation” in health care. In group practices large and small, and individually, physicians will have the incentive to address the failings that vex our health care system. As a reminder, these include:

  • A 25 percent to 30 percent rate of unnecessary, inappropriate, or excessive care;
  • All too common misdiagnosis and medical errors;
  • Care whose “value”—results for the money paid—is suboptimal;
  • High and escalating prices, the highest paid physicians in the world, and an unsustainable cost growth trend; and,
  • The most expensive health care system in the world even as it yields poorer overall results compared to other developed nations that spend less.

Doctors clearly are not to blame for the totality of these failures. But since roughly the year 2000, consensus has grown that no gains can be made in tackling the above problems without changing the drivers of physician behavior. They are the main actors in the system; they deliver the care and order it. In doing so, they generate the majority of costs. Increasingly, they also run health care systems and hospitals.

Many avenues to changing physician behavior exist: regulation and oversight; education and training; professional standards and rewards; peer pressure and review; community standards; the threat of malpractice; performance/quality measurement; financial incentives; and competition.

This post reflects on the last three of those avenues — performance/quality measurement, financial incentives, and competition.

Performance And Quality Measurement

Assessing physician performance as a way to drive quality improvement and consumer choice is coming under newly intense scrutiny. Measurement was supposed to become easier, better, and more meaningful with the development of electronic health records. That hasn’t happened. So the field remains largely dependent on direct reporting and claims data.

At the same time, the number of measures has proliferated; it’s now well over a 1,000. And the application of these measures via Medicare, insurers, health systems, and payers has been chaotically executed. Some experts advocate a 50 percent reduction in the number of measures.

Physicians and their staffs are now spending an unacceptable amount of time dealing with the reporting of quality measures — 15 hours per physician per week at a cost of just over $40,000 per doctor per year.

It is also suggested by experts that this time commitment and level of scrutiny has deepened physician dissatisfaction and burnout, with the majority of doctors in a 2014 survey expressing negative feelings about their profession and its future.

But despite physicians’ grumbling, new attempts to rate doctors are actually proliferating, as consumers’ interest in and engagement with this information grows. Millions of people are now rating their doctors online and media organizations, such as Consumers Checkbook, are using Medicare data and other data to probe physicians’ quality of care, and issue consumer-friendly report cards. Here too, though, methodology and results have stirred up controversy.

Financial Incentives

Into this contentious environment comes MACRA. It mandates financial incentives starting at 4 percent of Medicare reimbursement, as bonus or penalty, in 2019 and rising to 9 percent in 2022 for physicians who choose to enroll in what the Centers for Medicare and Medicaid Services (CMS) has dubbed the Merit-based Incentive Payment System, or MIPS. 

Doctors in MIPS must report performance measures to CMS. They’ll then be graded on four factors: quality-of-care (30 percent); resource use (30 percent); meaningful use of electronic health records (25 percent); and clinical practice improvement activities (15 percent). Quality-of-care metrics must include patient experience.

Alternatively, doctors can become part of an Alternative Payment System, such as an Accountable Care Organization.

Although the American Medical Association and other physician organizations helped design and generally support the new payment scheme, they disagree with many of the proposed details. These were aired in a plethora of comments to CMS in late 2015.


Basing payment on performance is one way to change physician behavior. Another way is to foster competition based on those same measures of performance and quality. That happens at the insurance plan and payer level but it can also happen at the consumer level. Doctors are already vying for network inclusion, for example, and group practices are being scrutinized by everyone. Indeed, it’s likely that under MACRA virtually every physician will be profiled based on their quality of care, resource use, patient experience, use of data and technology, etc.

Looking Ahead

First, physicians have a legitimate distaste that the burden of measurement today is excessive. It’s time to overhaul a dysfunctional measurement scheme and strive, where we can, to let doctors focus on being doctors. For too long, the lack of physician accountability let our health system function at low levels of performance and poor value.

Second, there’s reason to be optimistic: The science of measurement is improving, as is the art of public reporting. And, by all accounts, CMS is committed to creating a much better payment incentive system under MACRA, and to making Physician Compare a meaningful site.

Third, financial incentives work. By 2022 or so, the majority of doctors will either have 30 percent to 50 percent of their income tied to performance (with government plus private-sector payment initiatives) or be salaried in an integrated system. That’s perhaps the right direction.

Fourth, consumer choice in a robust marketplace must be part of the solution. It works in other areas of our economy; indeed, it’s the foundation of our economy. As consumers face rising premiums and higher out-of-pocket spending, they deserve no less than to be armed with clear comparative information on health plans, providers, treatment options, and costs.

New Regulations: Modernizing Nursing Home Care

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After nearly 30 years, the Obama administration wants to modernize the rules nursing homes must follow to qualify for Medicare and Medicaid payments. There are hundreds of pages of proposed changes that cover everything from meal times to the use of anti-psychotic drugs to staffing.

Some are required by the Affordable Care Act and other recent federal laws, as well as the president’s executive order directing agencies to simplify regulations and minimize the costs of compliance.

“Today’s measures set high standards for quality and safety in nursing homes and long-term care facilities,” said Health and Human Services Secretary Sylvia M. Burwell. “When a family makes the decision for a loved one to be placed in a nursing home or long-term care facility, they need to know that their loved one’s health and safety are priorities.”

Officials announced the update at the recent White House Conference on Aging.  The once-a-decade [10 years ago] conclave set the agenda for meeting the diverse needs of older Americans, including long-term care options. July 30, 2015, also marked the 50th anniversary of the Medicare and Medicaid programs, which cover almost 125 million older, disabled or low-income Americans. Medicare and Medicaid beneficiaries make up the majority of residents in the country’s more than 15,000 long-term care facilities.

“The existing regulations do not even conceive of electronic communications the way they exist today,” said Dr. Shari Ling, Medicare’s deputy chief medical officer. “Also there have been significant advances in the science and delivery of health care that just weren’t imagined at the time the rules were originally written. For example, the risks of anti-psychotic medications and overuse of antibiotics are now clearly known, when previously they were thought to be harmless.

The proposed regulations include a section on electronic health records and measures to better ensure that patients or their families are involved in care planning and in the discharge process. The rules would also strengthen infection control, minimize the use of antibiotic and anti-psychotic drugs and reduce hospital re-admissions.

Revised rules would also promote more individualized care and help make nursing homes feel more like home.  For example, facilities would be required to provide “suitable and nourishing alternative meals and snacks for residents who want to eat at non-traditional times or outside of scheduled meal times.”

Residents should also be able to choose their roommates.  “Nursing facilities not only provide medical care, but may also serve as a resident’s home,” the proposed rules say. “Our proposed provision would provide for a rooming arrangement that could include a same-sex couple, siblings, other relatives, long term friends or any other combination” [as long as nursing home administrators] “can reasonably accommodate the arrangement.”

Consumer advocates are likely to be disappointed that officials are not including recommendations to set a federal nurse-to-resident ratio.

However, the proposed changes would require that nurses be trained in dementia care and preventing elder abuse to better meet residents’ needs.

“We believe that the focus should be on the skill sets and specific competencies of assigned staff,” officials wrote in the proposed rules, “to provide the nursing care a resident needs rather than a static number of staff or hours of nursing care that does not consider resident characteristics.”

Nursing homes will be required to report staffing levels, which Medicare officials said they will review for adequacy.

“It’s a competency approach that goes beyond a game of numbers,” said Ling. “If residents appear agitated, figure out why, get at the cause of the problem,” she said, instead of resorting to drugs to sedate residents.

Advocates for nursing home residents argue that because of inadequate staffing, residents with dementia are often inappropriately given anti-psychotic drugs, even though that can be dangerous for them. The new rules would help control the use of these drugs by requiring the facility’s pharmacist to monitor drugs that are prescribed for excessive periods of time or other irregularities and require the resident’s physician to address the problem or explain in the resident’s medical record why the medication is necessary.

“We don’t have enough nursing staff,” Toby Edelman, a senior policy attorney at the Center for Medicare Advocacy, said before the rules were released.  Federal law requires only one registered nurse on the day shift for a 20-bed facility or for a 500-bed facility, licensed practical nurses around the clock and sufficient staff to meet residents’ needs, she said.

“We don’t look at the specific staffing positions per se,” said Greg Crist, a spokesman for the American Health Care Association, which represents 11,000 skilled nursing facilities. “We look at the needs of the individuals when determining staff levels, and that is best addressed in the resident’s care plan.”

Although there are also no provisions addressing enforcement in the proposed rule, Ling said  it “will permit detection of violations to enable enforcement by lessening the noise.”

“The biggest problem is that the rules we have now are not enforced,” said Edelman.  “We have a very weak and timid enforcement system that does everything it can to cajole facilities into compliance instead of imposing penalties for noncompliance.”

A report by the Center for Medicare Advocacy found last year that often some serious violations were not penalized.

“Once the new rules are finalized, they will be added to the items nursing home inspectors check,” Ling said.

It’s Payback Time for Many Middle-Class Taxpayers

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Roberta and Curtis Campbell typically look forward to tax time. Most years, they receive a refund – a little extra cash to pay off credit card bills. But this year the California couple got a shock:  According to their tax preparer, they owe the IRS more than $6,000.

That’s the money the Campbells received from the federal government last year to make their Affordable Care Act health coverage more “affordable.” Roberta, unemployed when she signed up for the plan, got a job halfway through the year and Curtis found full-time work. The couple’s total yearly income became too high to qualify for federal subsidies. Now they have to pay back all the money.

“Oh my goodness, this is just not right,” said Roberta Campbell, who lives in the Sacramento suburb of Roseville. “This is supposed to be a health care insurance safety net and I am getting burned left and right by having used it.”

As tax day approaches, hundreds of thousands of families who enrolled in plans through the insurance marketplaces could be stuck with unexpected tax bills, according to researchers. Those payments could be as high as $11,000, although most would be several hundred dollars, one study found.

The result is frustration and confusion among some working and middle-class taxpayers, whom the Affordable Care Act was specifically intended to help. The repayment obligations could dissuade people from re-enrolling and provide more fuel to Republicans’ continuing push for a repeal of the law.

The problem is that many consumers didn’t realize that the subsidies were based on their total year-end income and couldn’t reliably project what would happen over the course of the year.

“How do you know if you are going to get that promotion?” Roberta said. “How do you know what your Christmas bonus is going to be?”

In addition, the government did not go out of its way to publicize the tax consequences of receiving too much in federal subsidies. It is not really something the administration focused on heavily. It’s not exactly popular.

The system was intended to ensure that people received the right amount in subsidies, no more or less than needed. But the means the government chose to reconcile the numbers was the tax system — notorious for its complexity well before the Affordable Care Act passed.

Enrollees who enrolled in The Affordable Care Act are now realizing that certain positive life changes – a pay raise, a marriage, a spouse’s new job – can turn out to be a liability at tax time.

H&R Block released a report in February 2015 saying that 52 percent of customers who received health coverage through the insurance marketplaces last year underestimated their income and now owe the government. They estimate that the average subsidy repayment amount is $530.

At the same time, about a third of those enrolled in marketplace coverage overestimated their income and are receiving money back – about $365 on average, the report said.

Under the Affordable Care Act, the federal government made subsidies available to people who earned up to 400 percent of the federal poverty level — about $47,000 for an individual and $63,000 for a couple.  For families who ended up making less than that, the federal government limits any repayments that might be due: The poorest consumers will have to repay no more than $300 and most others no more than $2,500. But the Campbells’ income last year exceeded the limit to receive federal help, so they have pay back the whole amount.

Roberta Campbell said she was only trying to do the right thing. Campbell, now 59, lost her job as a program director for the Arthritis Foundation in late 2012. She and her husband, who was working part-time as a merchandiser, downsized and moved into a smaller house.

They were left uninsured but were mindful of the federal mandate to be covered as of January 2014. So they signed up for a plan through California’s insurance marketplace, Covered California. The plan cost about $1,400 a month, but they were able to qualify for a monthly subsidy of about $1,000.

“We are rule followers,” she said. “We decided to get insurance because we were supposed to get insurance.”

They barely used the coverage. Roberta and Curtis each went to the doctor once for a check-up.  Then, about halfway through the year, Roberta got a job at UC Davis and became insured through the university. Curtis, who had been working part-time, got a full-time job for a magazine distribution company.

They notified Covered California, which Campbell said cancelled the insurance after 30 days. But with the new salaries, his pension from a previous career and a brief period of unemployment compensation, the couple’s year-end income totaled about $85,000, making them ineligible for any subsidies.

Their tax preparer told them they would have been better off not getting insurance at all and just paying the fine for being uninsured. In that case, the Campbells say their financial obligation would have been much smaller – about $850.

“The ironic thing is that we tried to pull ourselves up by our bootstraps,” Curtis Campbell said. “Now the IRS is going to penalize us. It’s frustrating.”

It’s not surprising that the projections people made about their income in 2014 in many cases were incorrect. The first open enrollment period started in October 2013, meaning that some enrollees based their estimates on what they earned in 2012.

Policy experts knew there would be a significant “churn” of people whose incomes change throughout the year and who would gain or lose their eligibility for subsidized coverage. But some experts said there was not enough understanding among consumers about how that could affect their taxes.

With tax season still underway, it’s not entirely clear how many people will have to repay the government for excess subsidies. But along with the recent H & R block estimates based on the firm’s customers, a UC Berkeley Labor Center study published in Health Affairs in 2013 suggested the numbers would not be not small.

Nationwide, 6.7 million people enrolled in marketplace exchanges through the Affordable Care Act in the first year. About 85 percent of people got federal help paying their insurance premiums.

Using California as a model, it’s estimated that even if everyone reported income changes to the insurance marketplace during the year, nearly 23 percent of consumers who were eligible for subsidies would have to pay the government back at least some of the amount received. About 9 percent of those receiving subsidies would have to pay the full amount. If no one reported changes, 38 percent would owe money.

The median repayment – if people reported income changes along the way — would be about $243 but some couples could owe more than $11,000, according to the research. The median amount due if people didn’t report the changes during the year would be $750.

The most important thing for people to do along the way is to report [income] changes so the subsidy amount is adjusted.

For those who must repay money, the IRS will allow payment in installments, even after the April 15 tax deadline. Interest will continue accruing, however, until the balance is paid.

Covered California spokesman Dana Howard said he understands paying back excess subsidies puts some in a difficult spot. But he said consumers who think their circumstances might change can decline the money or just take part of it.

Howard also said the subsidies were designed to give the working class people a leg up in affording health coverage. So when people get good jobs, he said, they don’t necessarily need the federal help to get insurance.

“When you get that really good fortune, that has to be shared back,” Howard said. “That is just how the Affordable Care Act law was written.”