FEHBlog

HHS released a proposed rule implementing various provisions of the HITECH Act which beefed up the HIPAA Privacy and Security Rules applicable to health plans, health care providers, healthcare clearinghouses and their business associates.  According to the HHS release (because I have not read the 234 page proposed rule yet)

The proposed rule announced today would strengthen and expand enforcement of the Health Insurance Portability and Accountability Act of 1996 (HIPAA) Privacy, Security, and Enforcement Rules by:

• expanding individuals’ rights to access their information and to restrict certain types of disclosures of protected health information to health plans. 

• requiring business associates of HIPAA-covered entities to be under most of the same rules as the covered entities;

• setting new limitations on the use and disclosure of protected health information for marketing and fundraising; and

• prohibiting the sale of protected health information without patient authorization.

HHS is inviting public comment on the proposed rule for 60 days beginning on July 14.

The Boston Globe reports that a federal district judge in that state, Joseph L. Tauro, ruled today that the federal Defense of Marriage Act (“DOMA”) is unconstitutional.  DOMA requires that the term spouse when used in a federal statute (as it is in Section 8902 of the FEHB Act defining a covered family member) must be limited to an opposite sex partner.  The individual plaintiffs in this case include federal and postal employees who wanted FEHB coverage for their same sex spouses (as same sex marriage is lawful in Massachusetts).  The Judge concluded that DOMA runs afoul of the Tenth and Fourteenth Amendments to the Constitution. We will have to see what happens now. Probably an appeal. A copy of the Court’s opinion in the Gill case is available here and its opinion in the Massachusetts case is here.

The Hartford Courant reports that America’s Health Insurance Plans, AHIP, announced that the board elected Vicky Gregg to a one-year term as chair. Gregg is president and chief executive officer of BlueCross BlueShield of Tennessee. She succeeds Jay Gellert, president and CEO of Health Net Inc. of Woodland Hills, California.

The President will be making a Congressional recess appointment in order to place Harvard professor Donald Berwick in charge of the Centers for Medicare and Medicaid Services according to Modern Healthcare.com. The recess appointment allows Dr. Berwick to hold the post for the remainder of the next Session of Congress (December 2011) without Senate confirmation.

Speaking of Medicare today is the date for implementation of the Provider Enrollment, Chain and Ownership System, or PECOS created as a result of the Affordable Care Act, according to a CMS press release. A stamp honoring Pecos Bill is to your left.

“CMS issued an interim final regulation on May 5, 2010 implementing provisions of the Affordable Care Act that permit only a Medicare enrolled physician or eligible professional to certify or order  home health services, durable medical equipment, prosthetics, orthotics, and supplies (DMEPOS) , and certain items and services under Medicare Part B.  The new law applies to orders, referrals and certifications made on or after July 1.

“While the regulation will be effective July 6, 2010, CMS will not implement automatic rejections of claims submitted by providers that have attempted to enroll in PECOS.  However, until the automatic rejections are operational, providers should not see any change in the processing of submitted claims, they will continue to be reviewed and paid as they have historically been reviewed and paid.”

The Kaiser Family Foundation has a helpful preview of the health care issues — Medicaid funding for the States, resuscitation of the COBRA/TCC premium subsidy, and the Medicare Part B physician reimbursement schedule — facing Congress when it returns from its recess next week. It’s all about the Benjamins.

The Labor Department’s Employee Benefits Security Administration, which enforces ERISA, the FEHBA’s private sector analog, has its own healthcare reform website. Posted on that site are model notices for ERISA governed plans to use when implementing certain Affordable Healthcare Act immediate reforms, such as the expansion of dependent child coverage up to age 26. That particular change takes effect for the FEHB Program on January 1, 2011.

Happy Independence Day! The Congress is in recess until next week.

The next Affordable Care Act implementing regulation will be the “Interim Final Rules for Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services under the Patient Protection and Affordable Care Act” which according to reginfo.gov, is currently receiving Office of Management and Budget review. I understand that the rule governing the Affordable Care Act’s internal and external disputed claim procedures is waiting to step into the on deck circle. Both sets of regulations apply to plans which remain grandfathered under the recently issued regulations.

Last week, on June 30, the Federal Workforce subcommittee of the House Oversight and Government Reform Committee held a hearing on the federal government’s use of temporary employees.  The Federal Times reports that

The federal government employs about 180,000 temporary workers, and is unsure how many lack health insurance. Those workers can purchase health insurance under the Federal Employees Health Benefits Program after they have completed one year of temporary service, but the government does not pay for any portion of the premiums. Temporary workers are also ineligible for federal life insurance or retirement benefits.

The federal government needs to better understand how many of its temporary workers lack health care coverage, Del. Eleanor Holmes Norton, D-D.C., said.

Angela Bailey, deputy associate director for recruitment and diversity at the Office of Personnel Management, said current law prevents the government from offering full FEHBP benefits to temporary workers.

Finally, last week URAC released preliminary results of an ongoing survey of medical management practices.  The URAC press release explains that “Preliminary results from a new survey by URAC, a national leader in health care accreditation, reveals that the medical management industry is continuing to focus resources on health information technology, but the ability of consumers to access their information on-line remains low due to the cost of developing appropriate web-portals and other business and security-related concerns.”

“We’re not unsympathetic to this issue,” Bailey said. “We would be more than willing to work with the subcommittee with regard to health benefits for these federal employees.”

The U.S. Labor Department posted an important and helpful clarification to its unnecessarily complex mental health reform rule today which reads as follows:

Since the interim final regulations were issued, some plans and issuers have stated that it is common with respect to outpatient benefits for plans and issuers to require a copayment for office visits (e.g., physician or psychologist visits) but coinsurance for other outpatient services (e.g., outpatient surgery, facility charges for day treatment centers, laboratory charges, or other medical items.)

For purposes of determining parity for outpatient benefits (whether in-network or out-of network), can a plan or issuer establish any sub-classifications, similar to the special rule for multi-tier prescription drugs?

Until the issuance of final regulations, the Agencies have determined that they will establish an enforcement safe harbor under which the Agencies will not take enforcement action against a plan or issuer that divides its benefits furnished on an outpatient basis into two sub-classifications for purposes of applying the financial requirement and treatment limitation rules under MHPAEA: (1) office visits, and (2) all other outpatient items and services. After the sub-classifications are established, the plan or issuer may not impose any financial requirement or treatment limitation on mental health or substance use disorder benefits in any sub-classification (i.e., office visits or non-office visits) that is more restrictive than the predominant financial requirement or treatment limitation that applies to substantially all medical/surgical benefits in the sub-classification using the methodology set forth in the interim final rules. Other than as permitted under this enforcement policy, and except as permitted under the interim final rules for multi-tier prescription drug formularies, sub-classifications are not permitted when applying the financial requirement and treatment limitation rules under MHPAEA. Accordingly, and as stated in the preamble to the interim final rules, separate sub-classifications for generalists and specialists are not permitted.

I was among many folks who asked for this clarification. I made my request at the OPM AHIP carrier conference in March.

This FAQ suggests to me, however, that the regulatory agencies don’t plan to accept the public comments suggesting that the compliance date (plan years beginning on or after today) be postponed one year.

Today, the Administration replaced the healthreform.gov website with the new healthcare.gov website. According to the HHS press release,

HealthCare.gov  is the first central database of health coverage options, combining information about public programs, from Medicare to the new Pre-Existing Conditions Insurance Plan, with information from more than 1,000 private insurance plans.  Consumers can receive information about options specific to their life situation and local community.
In addition, the website will be a one-stop-shop for information about the implementation of the Affordable Care Act as well as other health care resources.  The website will connect consumers to quality rankings for local health care providers as well as preventive services.

OPM’s analogous FEHBP website is opm.gov/insure.

The Federal Employees Health Benefits Program became effective 50 years ago today as a result of Congress enacting the FEHB Act of 1959.  About ten years ago, Abby Block, who was then OPM’s Assistant Director for Insurance Programs, prepared an excellent presentation called FEHB Past Present Future which looks back at the early years of the FEHB Program. It’s hard for me to believe that I started working on FEHB Program matters back in 1983. Hopefully the FEHBlog will help you keep up to date.

Congratulations go out to FEHB Plan carrier GEHA (Government Employees Health Association) because the Department of Health and Human Services awarded GEHA which was awarded the third party administrator contract “for the 22 states that have requested that the federal government run their Pre-Existing Condition Insurance Plan.”  An HHS website explains that

Section 1101 of the {Affordable Care Act] establishes a “temporary high risk health insurance pool program” to provide health insurance coverage to currently uninsured individuals with pre-existing conditions.  This program will be known as the “Pre-Existing Condition Insurance Plan.”

The new Pre-Existing Condition Insurance Plan (PCIP) is a transitional program to make health coverage available to those who have a pre-existing condition and who have gone without coverage for at least six months.

The Government starts taking enrollment applications on July 1 and coverage will become available on
August 1.

Another Affordable Care Act Program — the Early Retiree Reinsurance Program — will begin to accept claims tomorrow. The Government’s website explains that

• Employers with self-funded and insured plans can apply, including private companies, state and local governments, nonprofits, religious organizations, unions operating employee benefit plans, and other employers.
• Applications are now available online at www.hhs.gov/ociio along with extensive application assistance materials and information on where to send the applications. Applicants are being accepted as of June 29.
• To participate in the program, employers must have their applications approved, be able to document claims, and implement programs and procedures that have or have the potential to generate cost savings for participants with chronic and high-cost conditions.

FEHB plans, however, are not eligible to participate in this Program. Business Insurance reports that “the Employee Benefit Research Institute projected that the $5 billion would run out sometime next year, long before the program expires at the end of 2013.”

OPM reports that its Retirement Operations Center in Boyers PA is celebrating its 50th anniversary.   This jogged my memory that our beloved Federal Employees Health Benefits Programs became effective on July 1. 1960. More to follow on Thursday.

While the doctors received a Congressional reprieve last week, Business Insurance points out that “Senate Democratic leaders on Thursday failed once again to win enough support to stop debate and bring to a floor vote a tax extenders bill, delivering another blow to backers on extending federal COBRA[/TCC] premium subsidies.” As a result, federal and postal employees who have been involuntarily terminated from employment since May 31 are not eligible for the 65% government subsidy of the temporary continuation of coverage (TCC) premium under the FEHBP.

On June 21, 2010, U.S. District Judge Kollar-Kotelly granted summary judgment to the Goverment in the Coalition for Parity case challenging the Government’s decision to issue an interim final rule implementing the Wellstone-Domenici mental health parity act of 2008 rather than issue a proposed rule. A copy of the Judge’s memorandum opinion is available here.  Over 5000 public comments were submitted on the interim final order which was published in the February 2, 2010, Federal Register.  Many comments suggested that the regulator’s delay the compliance date for one year from plan years beginning on or after July 1, 2010, to plan years beginning on or after July 1, 201.. As far as I can tell from reginfo.gov, the final version of the rule has not yet been submitted to the Office of Management and Budget (OMB) for its review.

Health Leaders Media quoted a fellow member of the bar who is predicting that Department of Health and Human Services (HHS) will release a set of important HIPAA regulations on July 8. The proposed rules which concern among other things the HITECH Act’s business associate provisions, currently are pending OMB approval according to reginfo.gov.

Speaking of regulations, the HHS, Labor Department, and the IRS interim final rule implementing several significant “immediate reforms” of the Affordable Care Act, which the FEHBlog mentioned on Wednesday, will be officially published in the Federal Register tomorrow. Here’s a link to that official regulation which already is available.

Modern Healthcare reports on a further Federal Trade Commission extension of the compliance date for its Red Flag rule which is intended to combat identity theft.  “On June 25, it was announced that the FTC had reached a joint legal stipulation with three medical societies that had filed a lawsuit against the agency stating that it would not pursue enforcement of the rule until after the U.S. Court of Appeals in Washington reviews a trial court decision in which the American Bar Association successfully blocked implementation of the rule for legal offices.” The earliest compliance date is January 1, 2011.

Kaiser Health News featured an interesting article on how health care reform may prompt consolidation of health insurers and medical offices (currently doctors tend to practice in solo or small practices.)

Modern Healthcare reports that the House passed the Senate doc fix bill this afternoon by a 415-1 vote.
The bill creates a 2.2% increase in Medicare Part B reimbursements to doctors from June 1, 2010,
through November 30, 2010.

Congress has not yet resolved the Medicare cut issue. House Speaker Nancy Pelosi demanded that the Senate act on the tax extenders bill as a precondition to resolution of the Medicare cut issue. The Washington Post reports that the Senate has not been making much visible progress. Meanwhile Medicare continues to process Part B physician claims with the statutorily mandated 21.2% reduction. ABC News estimated that 50 million Medicare claims have been affected.

The White House released another major healthcare reform regulation on Tuesday.  That interim final regulation concerns elimination of pre-existing condition limitations, elimination of aggregate lifetime and annual dollar limits, anti-rescission, and certain patient protections applicable to plans which are not grandfathered under the regulation released last Thursday.

The New York Times reported this week on insurer efforts to implement the patient centered medical home concept.