ACA Archives - Ermer and Suter PLLC

Tuesday Tidbits

David Ermer–ACA, CDC, Congress, COVID-19, Medicare, Rx coverage, Uncategorized–June 23, 2020June 23, 2020

At today’s House Energy and Commerce Committee hearing on the COVID-19 emergency, Dr. Fauci, according to the Wall Street Journal, remarked that “he is ‘cautiously optimistic’ that a successful vaccine could be produced around the end of 2020. ‘I believe it will be when and not if,’ he said.” Amen to that. Here’s a link to today’s Senate Health Education Labor and Pension Committee’s hearing on the same topic.

The Labor Department’s Employee Benefit Security Administration issued a wide-ranging set of frequently asked questions on the health plan related provisions of the Families First Coronavirus Response Act and the CARES Act. Check it out.

Reuters reports on a sobering CMS study of the COVID-19 emergency on Medicare beneficiaries. ““The disparities in the data reflect longstanding challenges facing minority communities and low income older adults,” said Seema Verma, administrator of the Centers for Medicare & Medicaid Services (CMS).”

MedCity News informs us that “Clinical development will soon begin for an inhaled version of a [Gilead] antiviral drug {remdesivir} used to treat Covid-19 that is currently available only to hospitalized patients in intravenous form.” That’s a pro move.

Drug Channels offers its annual study of 2019 PBM drug spending reports.

The PBMs’ data highlight key trends about drug spending:
— For 2019, CVS and Express Scripts reported overall changes in drug spending that were in the low single digits. Prime reported mid-single-digit growth in overall drug spending.
— Spending growth on traditional drugs declined by mid-single digits for the third consecutive year. This decline came from deeper commercial rebates on brand-name drugs, ongoing deflation in generic drugs, and a small increase in the generic dispensing rates.
— The results for CVS and Express Scripts were comparable. For CVS Caremark’s commercial clients, net drug prices for traditional drugs declined by -6.3%, while utilization grew by 1.5%. For Express Scripts’ commercial clients, net drug prices for traditional drugs declined by -6.4%, while utilization grew by 1.4%.

In legal news

It was no surprise to learn from Politico that LGBTQ advocates already have brought a lawsuit against the Department of Health and Human Services (“HHS”) “over its rollback of LGBTQ patient protections, arguing that last week’s Supreme Court decision extending workplace legal protections to gay and transgender employees invalidates the new rules.” That should be a rollover win for the plaintiffs.
It was a pleasant surprise to learn that the U.S. District Court for the District of Columbia today ruled in favor of an HHS rule requiring hospital to disclose real prices, e.g, negotiated prices with health plans, for their services just like retail stores. The FEHBlog expects that this rule will lead to more and better (e.g., quality based) competition among hospitals. But first the decision will need to be affirmed by the Court of Appeals.

Monday Roundup

David Ermer–ACA, OPM, SCOTUS, Telehealth–June 15, 2020June 15, 2020

Health Payer Intelligence reports that “Major payers and payer organizations objected to the finalized HHS nondiscrimination rule—Affordable Care Act Section 1557—saying that the rule eliminates much of the specific language in the original rule, particularly relating to gender and sexual discrimination.” In that regard, this morning, per the Wall Street Journal, “The Supreme Court ruled that bedrock federal civil-rights law [Title VII of the Civil Rights Act of 1964] prohibits employers from discriminating against workers on the basis of their sexual orientation or gender identity, a decision that for the first time extends federal workplace protections to LGBT employees nationwide.”

The FEHBlog expects that this ground breaking Supreme Court decision will cause the Department of Health and Human Services to reconsider last Friday’s revised final Section 1557 rule either on its own initiative or upon a federal court order. That rule does not take effect until late August 2020.

In other news

The International Foundation of Employee Benefit Plans reports that the Centers for Medicare and Medicaid Services has created flexibilities to allow insurers to advance 2019 medical loss ratio rebates to individual policyholders. The 2019 medical loss ratio report normally would be due on June 30, 2020.
The American Hospital Association evaluates whether legislation or regulations can be used to extend various current telehealth flexibilities beyond the end of the COVID-19 emergency.
Govexec.com informs us that “Officials at the federal government’s 401(k)-style retirement savings program announced Monday that the Thrift Savings Plan has implemented provisions of the CARES Act coronavirus response package making it easier for participants impacted by the pandemic to access money in their accounts.” Here’s a link to this announcement.

Friday Stats and More

David Ermer–ACA, CDC, COVID-19, OPM–June 12, 2020June 12, 2020

According to the CDC’s COVID-19 cases in the U.S. website, which the FEHBlog tracks, over the past four weeks the numbers of new cases had taken a downward path until this week. New deaths have seen consistent weekly reductions.

Week Ending	5/22	5/29	6/5	6/12
New Cases	155,596	148,210	142,829	153,371
New Deaths	8,160	7,561	6,563	5,850

The Wall Street Journal report discussed in yesterday’s FEHBlog post suggested that we would see an uptick in new cases this week. Today, the Centers for Disease Control released COVID-19 considerations for events and gatherings as we emerge from the great hunkering down.

Today, the Department of Health and Human Services announced its revised final rule on Section 1557 of the Affordable Care Act which concerns individual non-discrimination. Here’s a link to the Department’s fact sheet. The 2016 final rule imposed extensive and expensive non-discrimination notice requirements on insured FEHB plans. The revised final rule scales down those requirements dramatically. What’s more the preamble to the revised final rule (p. 53) states

The Department continues to take the position that FEHB plans are not covered under this rule. Even if FEHB plans were considered “contracts of insurance,” as suggested by some commenters, they still would not fall under the scope of this rule because the contract would be with the Office of Personnel Management (OPM),which operates the FEHB Program, not with the Department. As noted above, this final rule does not extend the Department’s enforcement authority to a covered entity that is not principally engaged in the business of providing healthcare to the extent of its operations that do not receive financial assistance from the Department. The Department agrees that this final rule will accomplish the Department’s goal of reducing regulatory burden.

Being excepted from the HHS Section 1557 enforcement rule does mean that insured FEHB plans would not be subject to an HHS non-discrimination notice requirements. That status does not necessarily lead to the conclusion that FEHB plans are exempt from the statute. In any event, the revised final rule takes effect 60 days from publication in the Federal Register and you can expect federal court litigation over the revised final rule which likely would be reversed if we get a new President in 2021.

In other news —

Healthcare Dive reports on a recent study concluding that the air ambulance billing process is dysfunctional and produces big surprise bills. The article suggests that a federal surprise billing law is not in the offing but no one expect the counter productive ACA taxes to be repealed last year. Keep the faith.
Govexec.com reports on a GAO study finding that 60% of new hires left federal employment within only two years following hire during the years 2011-2017. Holy guacamole.
The Wall Street Journal reports that U.S. blood banks are “critically low.” “Covid-19 shutdowns have emptied community centers, universities, places of worship and other venues where blood drives typically occur.” Here’s a link to the American Red Cross blood donation site. This is a site worth promoting.

Monday Roundup

David Ermer–ACA, Congress, Uncategorized–June 8, 2020June 8, 2020

It turns out the Senate Homeland Security and Governmental Affairs Committee will be considering the President’s nomination of Craig Leen to be OPM Inspector General at its June 10 business meeting which begins at 10 am ET. The FEHBlog expect him to receive Senate confirmation later this month.

On Friday June 5 the Centers for Medicare and Medicaid Services summarized all of the COVID-19 mandates applied and flexibilities offers to non-federal governmental health plans. It’s nevertheless a useful summary for FEHB plans too.

Today the Internal Revenue Service released the PCORI fee around for plan years beginning not earlier than October 1, 2019 or later than September 30, 2020. In other words this notice applies to the current FEHB contract / plan year which aligns with the calendar year. The amount is $2.54 per belly button up nine cents from last year. The payment deadline is July 31.

Finally, Health Payer Intelligence posted a hopeful story about cooperation between the State of Washington and a community health plan in a successful effort to improve the social determinants of health data available to the plan.

Organizations may find it overwhelming to tackle every social determinant of health at once, especially when they see how expansive the social services network can be. So [Jennifer] Polello], MHPA, PCMH-CCE, director of clinical data integration and social determinants of health at Community Health Plan of Washington] recommended beginning with one social determinant of health, maybe the most prevalent.
“Create workflows and workflow aids and education around just one social issue to start the ball rolling,” she said.
Regardless of the strategy employed, building this network of community resources to address social determinants of health is important now more than ever.

Well put.

Midweek Update

David Ermer–COVID-19, OPM, Wellness–May 27, 2020May 27, 2020

Health Payer Intelligence discusses a Kaiser Family Foundation survey on deferred healthcare due to the COVID-19 emergency. “Almost 50 percent of American adults deferred care themselves or have a household member who deferred care due to the coronavirus, but more than two-thirds of those who deferred (32 percent of the total adult population) plan to get care in the next couple of months” Wow. Bear in mind that this backlog developed over the past three months. The FEHBlog therefore expects that providers will have the capacity to provide all of this deferred care quickly. But no doubt they will try to do so safely.

Speaking of patient safety, the Choosing Wisely program explains a successful program to improve patient care while reducing costs.

Choosing Wisely serves as the foundational underpinning for all of our discussions with clinicians regarding how we can deliver the highest value care to our patients,” said Alistair Aaronson, MD, MHA, FACP, who joined St. Jude (part of Providence St. Joseph Health System) in 2017 as its Executive Medical Director for Operations and High-Value Care.
Under Dr. Aaronson’s leadership, the 320-bed hospital launched a series of “bite-size projects” to reduce overutilization. Clinicians would pick a topic where there was anecdotal evidence of overutilization and then select a Choosing Wisely recommendation related to that topic. They would then compare their practice patterns against the recommendation; if the results were not positive, they would develop a project to address the overuse.

That’s a sensible solution that can be applied to other nagging problems that face us.

The FEHBlog took note of this Wall Street Journal article on progress being made in the convalescent plasma program to treat COVID-19. The article explains how proponents of this treatment are recruiting COVID-19 survivors to donate plasma in order produce the treatment.

Finding qualified plasma is more complicated than it might seem. Potential donors must meet the requirements of all blood donors, such as weight, age, and underlying health. Some don’t show up for their appointments; others find they are unable to give a sufficient amount.
“These are all challenges we have to recognize along the way in getting a donation from someone to an actual product,” said Dr. Pampee Young, chief medical officer of biomedical services at the American Red Cross. “We are building the plane as we fly it.”
The Red Cross has collected plasma from 4,000 recovered Covid-19 donors to date through its website RedCrossBlood.org/plasma4covid, according to a spokeswoman. She said the organization supports the efforts of the coalition but didn’t join it. “At this time, the Red Cross is fortunate to be able to meet the needs of our hospital partners,” she said. “We also have the capacity to ramp up our supply if necessary.”
[Moreover,] for-profit companies in the coalition [such as Microsoft] also continue to look for donors on their own through digital advertising and other online outreach, according to industry experts.

Surprisingly, one dose of the treatment may require donations from more than one survivor. The developers are fine tuning this issue now as studies continue.

UPI reports that “Workplace wellness programs designed to encourage employees to engage in activities and monitor their health might have negligible benefits, according to a study published Tuesday by JAMA Internal Medicine.”

[The researchers] compared healthcare outcomes and attitudes among [3,300] employees enrolled in the [generous wellness program] to those of 1,584 staff members not included in the initiative. [The study was conducted over a two year period.]
Overall, they found that participants in the wellness program were 5 percent more likely to have a regular primary care physician and more likely to have a positive attitude about their own health, compared to employees who did not participate in wellness-related initiatives.

The FEHBlog cannot understand why increased adoption of primary care physicians did not produce

significant effects on participants’ height, weight, waist circumference, body mass index, blood pressure, cholesterol or blood-sugar levels.
In addition, the risk for high blood pressure, diabetes or obesity was roughly the same for participants and non-participants after one and two years, researchers said.
Similarly, there were no differences between the two groups in terms of doctors’ office visits, hospital visits or emergency department visits.

That is one sobering study.

In other news, OPM today posted a “Fact Sheet: The Use of Flexible Work Schedules in Response to Coronavirus Disease 2019 (COVID-19)” and Govexec.com reports that the Postal Service like many other businesses is struggling with the COVID-19 emergency. But to their credit the mail continues to be delivered.

Friday Stats and More

David Ermer–ACA, COVID-19, SCOTUS–May 15, 2020May 28, 2020

Per the CDC’s COVID-19 Cases in the U.S. that the FEHBlog tracks, the number of COVID-19 cases crossed the 1.4 million mark and the number of COVID-19 deaths exceeded 85,000 today. The CDC’s COVIDView confirms that the rate of increase continues to slow. For what it’s worth, the FEHBlog-calculated COVID-19 case mortality rate has been pretty stable for the past month. The Wall Street Journal’s Numbers columnist discusses COVID-19 stats her latest column.

Dividing fatalities by the number of confirmed illnesses produces the case fatality rate. [That’s FEHBlog’s approach] A better estimate of lethality divides fatalities by the number of people infected. But no one knows how many people are infected with Covid-19.
“Right now the death rate is a guess,” Dr. [Fred] Brauer said. “I’ve seen ranges from one-tenth of a percentage point to 3%.”

The FEHBlog has been tracking the simple case mortality rate to find a plateau and the FEHBlog thinks we may be there.

Recently, the filing of Supreme Court briefs defending the Affordable Care Act’s constitutionality have lead some press outlets to raise an alarm. The best chill pill is to read this Reason article by Prof. Jonathan Adler who filed on the 38 friends of the Court briefs supporting the statute’s constitutionality. The article’s title says it all — “The Penalty-less Individual Mandate Is Severable from the Rest of the ACA No Matter How You Look at It.” Amen to that.

A friend of the FEHBlog brought to his attention this C-SPAN interview with Dr. David Kimberlin. Dr. Kimberlin is pediatric infectious diseases chair at the University of Alabama at Birmingham. He talked about how the COVID-19 pandemic is impacting children. He expresses concern that the COVID-19 pandemic is discouraging parents from taking their children to pediatrician for routine childhood vaccinations. He encourages parents to contact their pediatrician to learn how the vaccinations can be obtained safely. That’s important advice.

In other news —

Becker’s Hospital Review discusses each of the fifteen hospital closures that have occurred in the United State this year.
STAT News reports that “fueled by the Covid-19 pandemic, remote heart monitoring could become tech’s next big target.
- “Both Apple and Alphabet spinout Verily have watches equipped with EKGs that detect the heart abnormality atrial fibrillation, or A-fib. Apple and Amazon have recently hired prominent cardiologists to fill their ranks, while Facebook is hiring for a team overseen by Freddy Abnousi, a cardiologist and the social network’s new head of health technology. Among the new roles: an expert in the same type of technology used to monitor the heart in Fitbits and Apple Watches.”

Thursday Miscellany

David Ermer–ACA, COVID-19–May 7, 2020May 7, 2020

Today the Department of Health and Human Services finalized it major annual ACA notice — the 2021 notice of benefit and payment parameters. Here is a link to the fact sheet. Of note to all FEHB plan carriers —

The finalized 2021 maximum annual limitation on cost sharing [for in-network care] is $8,550 for self-only coverage and $17,100 for other than self-only coverage. This represents an approximately 4.9 percent increase above the 2020 parameters of $8,150 for self-only coverage and $16,300 for other than self-only coverage.
We finalized changes to the policy regarding how direct drug manufacturer support, including coupons, may accrue towards the annual limitation on cost sharing in response to stakeholder feedback indicating confusion about the regulatory requirement finalized in the 2020 Payment Notice. This new policy provides that, to the extent consistent with State law, issuers will be permitted, but not required, to count toward the annual limitation on cost sharing amounts paid toward reducing out-of-pocket costs using any form of direct support offered by drug manufacturers to enrollees for specific prescription drugs.

The notice also makes changes to the medical loss ratio rules applicable to health insurers. The entire annual notice is available at this link.

The Government Accountability Office today released a timely report titled “Congressional Action Is Essential to Enable a Sustainable Business Model.” In pertinent part —

Regarding USPS, reassessing its business model should start with the level of required postal services. For example, delivery is USPS’s most costly operation; USPS officials estimate annual savings of $1.4 billion to $1.8 billion if delivery of mail were reduced to 5 days rather than 6 days per week. Second, USPS is to function as a financially self-sustaining entity; however, it does not. A reassessment could include determining whether some of USPS’s costs and liabilities should be borne by taxpayers. Third, alternative institutional structures for USPS range from a federal agency to a private company. A bankruptcy proceeding is not an effective or appropriate means to address the issues associated with a potential USPS restructuring, according to the National Bankruptcy Conference [whose report is an appendix to the GAO report].

The Wall Street Journal in its story on the GAO report noted that “The Postal Service’s governance board said Wednesday it would tap Louis DeJoy, the chief executive of a North Carolina consulting and project-management firm, to be the next postmaster general.” He is “expected to take over as postmaster general on June 15” at which point the current Postmaster General Megan Brennan will begin her well deserved retirement.

Also today UnitedHealth Group announced the large health insurer

will provide more than $1.5 billion in initial assistance, including customer premium credits, to its UnitedHealthcare customers as many people have been unable to access routine or planned care due to the COVID-19 pandemic. Consequently, UnitedHealthcare has seen a lower volume of medical care being delivered than was anticipated when pricing was initially established.
For UnitedHealthcare commercial fully insured individual and employer customers, credits ranging from 5% to 20% — depending upon the specific plan — will be applied to premium billings in June.
For people served by UnitedHealthcare Medicare Advantage plans, all specialist and primary physician cost sharing will be waived at least through the end of September, helping remove barriers for seniors needing to access care.

The FEHBlog is quite proud to represent health insurers and plans for the way that they have stepped up in this crisis for their members.

Tuesday Tidbits

David Ermer–ACA, COVID-19, OPM, SCOTUS–April 28, 2020April 28, 2020

Following up on yesterday’s post on the Supreme Court’s decision in the Affordable Care Act risk corridor case, read Katie Keith’s article in Health Affairs on all of the decision’s reverberations. Fascinating.

The FEHBlog did virtually attend the NCQA Quality Talks 2020 conference today. Two speakers favorably caught the FEHBlog’s attention:

With regard to OPM’s concern about rooting out low value care in the healthcare system, Cardiologist Rita Redberg, MD, has been editing for years a series in the JAMA Internal Medicine Journal titled “Less is More.” Dr. Redberg blasted the medical device industry for promoting artery stents before first obtaining reliable evidence of the device’s safety and efficacy. As it turns out the device is no more effective than a placebo.

The good doctor explained that normally it’s difficult to perform a blinded research study with a new medical device because the research participant usually knows whether or not she received the device (as a opposed to a sugar pill.) In this recent Orbita study, the researchers convinced all of the study participants that they had received a stent. The good doctor also spoke about a friend who unnecessarily received a stent and wound up needing a heart transplant.

The FEHBlog also was quite impressed by Dana Lewis a young go-getter who along with a colleague developed a small closed loop computerized system to control her continuous glucose monitor as she has type 1 diabetes. She then founded an “open source artificial pancreas system movement (#OpenAPS)” to help others. She is not resting on her laurels.

An article in Medical Economics discusses a proposed Labor Department rule intended to protect TRICARE medical networks. However, the rule if finalized would disrupt FEHBP medical networks. The FEHBlog submitted comments to the Labor Department on the proposed rule for the FEHB plan trade association he represents. The comments asked the Labor Department to protect both TRICARE and FEHBP networks. He hopes the Labor Department will pull back the rule given the COVID-19 emergency.

In a bit of good COVID-19 news, the New York Times reported progress being made in two efforts to create a COVID-19 vaccine. Fingers crossed.

Also the Hill reported this afternoon that the House of Representatives has changed its mind about returning to Capitol Hill on May 4. The Senate continues to plan to return to the Capitol next Monday.

Weekend update

David Ermer–ACA, CDC, Congress, COVID-19–March 29, 2020March 31, 2020

Congress is on a State / district work period this week. The Health Affairs blog discusses the health coverage provisions in the CARES ACT. In addition to broadening coverage of COVID-19 testing [Section 3201] and any future FDA-approved vaccine [Section 3203] , the new law permits high deductible health plans with health savings account to pay for telehealth care before the deductible [Section 3701] and repeals the Affordable Care Act provision requiring a doctor’s prescription for over the counter medicines as a prerequisite to reimbursement from a health savings account or a healthcare flexible spending account [Section 3702].

The high deductible health plan telehealth provision took effect last Friday and the over the counter drug coverage change was made retroactively effective January 1, 2020.

Health Affairs blog adds that

Under [Section 3202 of] the CARES Act, all comprehensive private health insurance plans would reimburse a test provider based on the rate negotiated between the plan and the provider (i.e., the in-network rate) that was put in place prior to this emergency. If there is no negotiated rate between the plan and provider (i.e., the provider is out-of-network), the plan would fully reimburse the provider based on the provider’s own “cash price” (or a lower price if the plan can negotiate one). This “cash price” must be publicly available (listed on a public website) while there is a declared public health emergency. Providers that fail to make their price public could face a civil monetary penalty of up to $300/day. This provision essentially allows out-of-network labs to set their own price and expect full reimbursement from the plan, potentially leading to dramatic price increases for testing.

Fierce Healthcare reports that that healthcare actuarial consulting firm TowersWillisWatson has released a projection of healthcare spending associated with the COVID-19 emergency.

On the low end of the spectrum, should the outbreak infect just 10% of the population and prove to have low morbidity, costs will increase by under 1%. However, if the virus infected 50% of the population with high morbidity, costs could increase by 6.8%, the study found. The scenario with the highest cost increases is if the virus 30% of people with high morbidity—a combination that could lead to 7.2% in cost increases, Willis Towers Watson found.

A major federal agency and two other health plan accrediting bodies have centralized their COVID-19 emergency guidance:

Apple in partnership with the Centers for Disease Control has posted a COVID-19 screening tool for consumers.

Monday Musings

David Ermer–ACA, Congress, COVID-19–March 23, 2020March 23, 2020

Today is the tenth anniversary of President Obama signing the Patient Protection and Affordable Care Act into law. The FEHBlog is tempted to muse on the law but since he has been writing in this space since 2006, he concluded no need exists for another such musing.

Be sure to check out at least the transcript for this week’s Econtalk interview with Dr. Azra Raza, a veteran oncologist who wrote a book on the human cost of cancer treatment. She explained that the benefit of early detection of cancer lies in the fact that at that point the body has fewer cancer cells that must be killed. She also touted tobacco cessation. She further explained that the new fangled CAR-T drug therapy has a weakness. CAR-T activates the body’s T cells which wind up killing healthy and cancerous tissue in a particular organ. Consequently CAR-T therapy is not used for example on liver cancer because the cure would kill the liver. Cancer is a very complicated disease.

On the COVID-19 front —

The Hill reports on continuing Senate negotiations over the third COVID-19 emergency relief bill. The American Hospital Association helpfully lists the healthcare provisions in the draft legislation which includes adjustments to the Families First relief bill’s COVID-19 testing coverage mandate and allow high deductible health plans with health savings accounts to waive their deductible for telehealth services.
“Today the U.S. Treasury Department, Internal Revenue Service and the U.S. Department of Labor announced that small and midsize employers [under 500 employees] can begin taking advantage of two new refundable payroll tax credits, designed to immediately and fully reimburse them, dollar-for-dollar, for the cost of providing Coronavirus-related leave to their employees.”
The Wall Street Journal offers an illuminating story about its investigation into the COVID-19 deaths at a Washington State nursing home. On February 26 the nursing home order closure of its dining rooms and an institutional scrub down due to a high number of respiratory illnesses among patients. Nevertheless the staff went ahead with a schedule party for patients, their family members and staff and ka-boom. This is why the social distancing guidance is so important right.