Texas Today

This Week in Health Reform: November 13, 2009

This week’s debate focused on last Saturday’s approval of health care reform legislation by the House of Representatives. Some members of the media have raised concerns over the costs associated with the Democrat version of health care reform, highlighting the challenges Democrats might face politically as health care reform legislation evolves in Congress.

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House and Senate Negotiations

House Passes Health Care Reform Legislation: Late last Saturday, the House narrowly passed its health care reform package with a 220-215 vote, which included opposition from 39 Democrats. One Republican, Rep. Joseph Cao (R-LA), voted in favor of the bill. President Barack Obama visited Capitol Hill on Saturday morning to encourage House Democrats to pass the legislation.

The $1.1 trillion legislation passed by the House would extend coverage to an estimated 36 million Americans, vastly expand Medicaid, establish a government-run option, and create individual and employer mandates. It would also bar insurers from denying coverage based on pre-existing conditions or from dropping coverage for those who become sick. To pay for the expansion, the House passed measures including a $400 billion cut in Medicare spending over the next 10 years and new taxes on the wealthy. While the Congressional Budget Office (CBO) estimates that the bill will reduce the federal deficit by about $104 billion over a decade, the bill’s longer term impact remains unclear, and some Democrats are still raising concerns over its costs.

In order to secure enough votes for passage, House Speaker Nancy Pelosi (D-CA) agreed to hold a vote on an amendment that would specifically bar the public plan from covering abortion and prohibit those who receive insurance subsidies from using the subsidy to purchase private plan options that cover abortion. The amendment was approved 240 to 194, with 64 Democrats in favor. Abortion rights supporters, however, vowed to oppose the final legislation if it remains in the amendment, highlighting the difficult road ahead.

AARP and AMA Back House Bill: The House reform legislation received a boost last Thursday, winning the support of two highly influential lobbies – AARP and the American Medical Association (AMA). The announcements came at a critical time as the House Speaker was working to shore up the last votes needed to pass the reform legislation.

Small Businesses Voice Concern: Groups and coalitions representing small businesses showed their opposition to the health care reform late last week, sending letters to lawmakers urging them to vote against the House health care reform bill. In a statement Saturday, Susan Eckerly, Senior Vice President of the National Federation of Independent Business, said, “With unemployment at a 26-year high, the punitive employer mandates and atrocious new taxes will force small business owners to eliminate jobs and freeze expansion plans at a time when our nation’s economy needs small business to thrive.”

Obstacles Remain for Senate: While Senate Majority Leader Harry Reid (D-NV) waits for the CBO to review the Senate’s health care proposal, many hurdles remain before securing the 60 votes needed for it to pass. These obstacles include the incorporation of a public option, issues associated with federal funding for abortion, and how to pay for the health care overhaul. Recent reports indicate that Sen. Reid is favoring an increase in payroll tax on the wealthy to help pay for reform. In addition, U.S. drug makers, medical-device manufacturers and insurers are gearing up for another opportunity to reduce proposed industry fees in the Senate version of reform legislation.

With continuing pressure from White House officials to pass health care reform legislation by the end of the year, Sen. Reid has indicated that he will bring the reform package to the Senate floor for debate as early as Monday. However, Senators have indicated that, more realistically, voting will take place before Christmas, with the final passage in mid-January. In an effort to spur on Senate Democrats, Former President Bill Clinton – whose health care reform efforts failed 15 years ago – told the senators over lunch last Tuesday that “passing health care reform is not only a moral issue but also an economic imperative.”

Public Opinion

American Support Slips for Passing a Health Care Reform Bill: A new Gallup Poll released last Monday shows that Americans have moved in a more negative direction on whether or not a new bill should be passed into law. Thirty-eight percent of Americans now say they would advise their member of Congress to vote against a new health care bill this year, while 29 percent would advise their member to vote for it. In addition, 41 percent say a new health care bill would make the U.S. health care system better in the long run, while 40 percent say it would make things worse.

Other Activities

Republicans Mobilize to Increase Opposition: In an effort to drum up opposition to the Democratic health care reform bills, Senate Republican Conference Chairman Lamar Alexander (R-TN) indicated that Republicans are “quietly” planning approximately 50 in-person and telephone town hall gatherings over the next three weeks.

Looking Ahead

CBO estimates of the cost of the Senate health care reform package are expected late this week or early next week, which will clear the way for Senate Majority Leader Harry Reid to bring the legislation to the Senate floor for debate as early as Monday.

Week of November 9, 2009

Given that the Senate is expected to require much more time than the House to vote on a health care bill (see below), it is likely there is not enough legislative time left in 2009 to wrap up a bill for Christmas delivery to the White House. Senate Majority Leader Harry Reid fueled concerns about the schedule last week when he refused to commit publicly to passing an overhaul bill this year. This makes a “conference” between the House and Senate MORE likely in January 2010 THAN IN 2009, and that could require some time since the current House and Senate versions are vastly different on several key provisions. If the Conference pathway proves too contentious, House Speaker Nancy Pelosi and Reid could play legislative “ping-pong,” whereby each Chamber makes a modest change and ships if off to the other, back and forth, until they both approve the same language.

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Federal

Late Saturday night the House of Representatives approved its version of health care reform by the slim margin of 220 to 215 (218 was the minimum needed). The core of the approved House bill remained unchanged from the version the Speaker introduced a few weeks ago and includes: an employer mandate to provide and pay for coverage; a fairly strong individual coverage requirement; a public plan option set up by government that would pay “negotiated” rates to providers; and insurance reforms, including guaranteed issue and modified community rating. It does not include the “Cadillac” plan tax or the insurer tax provisions currently in the Senate bill. The House bill would be paid for in part with cuts to Medicare Advantage and a surcharge on the “wealthy.”

On the Senate side, Majority Leader Reid is waiting for the revenue score from CBO on several different Senate Bill scenarios, given that several Senators have publicly stated opposition to going forward without a hard and fast number on both cost and impact on bending the spending curve. He also needs this time to win over the 60 votes needed to even proceed with consideration of the bill, let alone the 60 needed to cut off debate once the debate begins; he may not have either right now. The earliest the Senate could start debate would be the week of November 16, but a date in December seems more likely. Approval of the House bill will surely put increased pressure on the Senate to move forward but to do so cautiously, given the slim voting margin in the House, as the issue moves closer to the finish line.

Bills to extend and expand COBRA have been introduced in both the House and Senate and could well be part of the final push on health care reform. Both versions extend the Special COBRA subsidy program from end of 2009 to June 30, 2010 and maintain the government’s 65 percent subsidy. The Senate version increases this subsidy to 75 percent, and the House extends basic COBRA eligibility from 18 to 24 months. Given the unemployment numbers, it seems likely that, whether as part of health reform or on its own, a COBRA extension (including the subsidy) will be enacted in 2009.

States

ARIZONA: Governor Jan Brewer and legislative leaders have reached a tentative agreement to reconvene to address the projected 2010 budget shortfall, which ballooned from $1 billion in early September to $2 billion by the end of October. Although the governor favors a temporary tax increase to boost revenue, she is unlikely to float that idea this time around to help limit the length of the session. Governor Brewer is expected to announce her candidacy for re-election. Although the former lieutenant governor is now the incumbent and has never lost an election, she is viewed as vulnerable by some Republicans because of budget concerns and her continued focus on obtaining additional revenue through taxation.

CALIFORNIA: California’s state budget deficit could reach $7 billion for the current fiscal year in part because of recent court decisions blocking state funding cuts. For example, a federal judge recently blocked the state’s plans to cut $80 million from its budget for In-Home Supportive Services, and Insurance Commissioner Steve Poizner has filed a suit to block the sale of part of the State Compensation Insurance Fund, which was projected to generate $1 billion. Some analysts project that the state’s budget deficit will range from $10 billion to $20 billion in the upcoming fiscal year. In other developments, Lt. Governor John Garamendi won a special election to fill the Congressional seat vacated by U.S. Representative Ellen Tauscher (D). Garamendi was elected lieutenant governor in 2006 after 16 years in the legislature and two terms as insurance commissioner.

COLORADO: Senator Betty Boyd, President Pro Tem and Chair of the Health and Human Services Committee, met with insurer representatives to highlight the issues likely to get attention in the upcoming session. A proposal to prohibit the use of gender in rating individual policies has a high likelihood of passing, she said. Senator Boyd also advised that efforts will be made to ensure that the Cover Colorado program remains solvent, as it has potential to be used as the state’s public plan option. Speculation has it that Colorado could become one of the first states to act on federal health care reform if it is enacted. Finally, she expressed a strong interest in authorizing the DOI to establish standardized policy forms.

DELAWARE: Department of Health and Social Services Secretary Rita M. Landgraf has issued an update to existing statutes adding virtual colonoscopy as an approved colorectal screening modality. Delaware law requires coverage for colorectal screening modalities and empowers the Secretary to add modalities as recommended by the Delaware Cancer Consortium. Accordingly, all contracts for health insurance issued, delivered or renewed after December 1, 2009 must include coverage for virtual colonoscopy for colorectal cancer screening.

DISTRICT OF COLUMBIA: Newly passed legislation requires individual and group health plans to provide coverage for orally administered chemotherapy medication in a manner no more restrictive than intravenously administered treatment or injected cancer medications. In other business, the Council of the District of Columbia confirmed Acting Commissioner Gennet Purcell as Commissioner for the District of Columbia Department of Insurance, Securities and Banking (DISB). Commissioner Purcell, who served as DISB’s Deputy Commissioner since 2008, is an attorney and member of both the State of Maryland Bar and the Commonwealth of Virginia Bar. As deputy, her primary responsibilities included oversight of the agency’s core functional areas, including the divisions of Insurance, Securities, Banking, Fraud Enforcement and Investigation, and Risk Finance.

GEORGIA: A meeting was held last week between health insurance representatives and the Chairman of the Senate Insurance Committee to discuss legislation for 2010 that would restrict rental networks. The Medical Association of Georgia also was represented. Aetna has committed to work with all interested parties on the legislation.

ILLINOIS: A fall veto session concluded at the end of October, and three health insurance bills of import passed both chambers. The first bill creates external review requirements for all commercial insurance products, rather than just HMOs, effective July 1, 2010. The bill also establishes committees to create a uniform small-employer group health status questionnaire and an individual health statement for use on January 1, 2011. The legislation also requires insurers to semi-annually prepare and provide the Department of Insurance a statement on aggregate administrative expenses and other information. It is a good compromise versus what was originally proposed. In addition, both chambers passed an orthotics and prosthetics mandate on health carriers and HMOs for policies amended, delivered, issued, or renewed six months after the effective date of the amendatory act. The third bill changed the requirements to obtain a producer license. The Illinois General Assembly is not expected to reconvene until January 2010.

MISSOURI: The Secretary of the State recently approved a ballot initiative proposal for the November 2010 ballot that would essentially eliminate network-based health care delivery in Missouri. The move follows unsuccessful efforts to enact an any-willing-provider bill in past legislative sessions.The petition effort behind the ballot initiative appears to have been spearheaded by a local surgical practice that has been excluded from the medical staffs of local hospitals. Any willing provider is only one portion of the proposal. It would apply to health carriers and health benefit plans, including Medicare and Medicaid, and facilities. It would, for example, prohibit carriers from: Imposing on a beneficiary any co-payment, fee, or condition that is not equally imposed on all other beneficiaries in the same benefit category, co-payment level, or class; prohibiting or limiting a provider from the opportunity to participate in the network if that provider is willing to accept the carrier’s operating terms and conditions, fee schedule, covered expenses, utilization and quality standards. The State Auditor is preparing an assessment of the fiscal impact of the proposed measure as well as a brief summary of the fiscal impact for the petition. Legal challenges to the ballot initiative are permitted. A group of stakeholders, including Aetna, are discussing strategy.

NEW JERSEY: Health insurance issues were front and center in a bitter battle for the governor’s office, which ended last week when Republican candidate Chris Christie defeated Democratic Governor Jon Corzine. The governor-elect has publicly supported greater flexibility for carriers to make health coverage more affordable via mandate-free plan designs and interstate sales of health policies. The Democrats remain in firm control of the legislature, which will make the governor-elect’s agenda an uphill battle. Also, the Department of Banking and Insurance (DOBI) adopted a regulation standardizing the information and format on health identification cards. Additionally, DOBI initiated a meeting with the state’s major health plans seeking guidance as to how the state might proceed in limiting plans,’ and members,’ exposure to exorbitant out-of-network provider charges. This is one in a series of meetings aimed at developing consensus on an appropriate fee schedule or other mechanism for non-par provider charges. Lastly, the NJ Department of Health & Senior Services (DHSS) has launched a six-month Hospital Newborn Pilot Program. Nine hospitals throughout the state are participating in a pilot to ensure no newborn leaves the hospital without health insurance. The participating hospitals are expected to submit data to the DHSS.

NEW YORK: Governor David Paterson is calling for a special session to address the current state budget deficit. The Governor’s two-year, $5.2 billion Deficit Reduction Package would have a current-year impact of $3.2 billion in 2009-10 and a recurring impact of $2 billion in 2010-11. The components include across-the-board spending reductions and a tax penalty forgiveness program. The Governor indicated that his agenda will include a bill that would completely prohibit all subrogation (collateral source) recoveries on any insured or self-insured plans. The existing collateral source rule eliminates the potential windfall of double recoveries to plaintiffs who receive benefits and make recoveries from both their insurance coverage and defendant payments, while still ensuring that uncompensated losses are fully compensated. This subrogation legislation passed the Senate earlier this year, but it has not passed the Assembly. In other business, State Sen. Eric Schneiderman, chairman of the Codes Committee, and Sen. Neil Breslin, chairman of the Insurance Committee, introduced a bill known as “Ian’s Law,” which is named after a patient with muscular dystrophy. The proposed legislation would prohibit non-renewal of group policies and would require heath plans to get state Department of Insurance approval before discontinuing a class of insurance. The bill also would require plans to continue covering a totally disabled policyholder for 18 months, even if the plan gets state permission to cancel an entire class of policies.

Week of November 2, 2009

That the bill going to the floor of the House contains a government plan option is no surprise. But Senate leadership’s decision to pursue a government plan option in defiance of the Senate Finance Committee’s preference is something of a surprise (see below), given it was perhaps the most bitterly argued reform issue of the summer’s town hall meetings. The path ahead in the Senate will not be an easy one, as Connecticut Senator Joseph Lieberman’s opposition makes clear. Lieberman is a former Democrat who still caucuses with Senate Democrats and had been counted among a potential 60 filibuster-proof majority. As the issue heats up, expect more debate and media attention on the real ramifications of this controversial provision.

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Federal

Several discrete events occurred this past week that have bearing on the health care reform (HCR) debate. First, Majority Leader Harry Reid boldly moved where he was not expected to go: He announced that a relatively strong form of the public plan, the “opt-out” version, would be in the bill he brings to the Senate floor. Most observers thought Reid would pick a “lighter” form of public plan. However, he clearly wants to keep the Democratic left on board while he works to secure votes on the right, rather than the other way around. Second, within 24 hours, Senator Joseph Lieberman (I-CT) broke ranks publicly and stated flat-out that he would filibuster against Reid’s bill because of the government plan option. The Senate is expected to take a week longer to merge its two Committee bills and secure a score from the Congressional Budget Office, which is likely fine with Reid who probably does not have the 60 votes needed to bring the bill to the floor or end a filibuster. The Senate Floor debate is likely to begin around Veteran’s Day. On the House side, Speaker Nancy Pelosi has unveiled the merged House bill (1990 pages, $894 billion in costs and rising), setting the stage for an expected vote — with no real debate and no amendments allowed — on the House floor late this week. The Speaker likely would not let the bill come to the floor unless she knows she has the votes or she believes can get them.

On related fronts, in order to get the HCR bill below the $1 trillion mark, the Speaker purged it of a $200+ billion item by deleting the Medicare physician reimbursement fix provision and introducing this as a freestanding bill, which has no “pay fors,” i.e., it would add to the federal deficit. The Senate has already rejected this freestanding bill approach, which means Congress still has no solution for the impending slashing of 21 percent in doctor Medicare fees in 2010. Separately, Congressman McDermott (D-WA) has introduced a bill to neutralize ERISA’s preemption protection by allowing state law causes of action for claims disputes to be processed under state liability law. Aetna would oppose either measure should it gain traction.

States

COLORADO: Governor Bill Ritter has unveiled another plan to shore up the state’s ever-widening budget shortfall by using federal stimulus dollars as a short-term stop gap. Although $1 billion has been trimmed from the budget since last year, a deficit of $271 million remains. Additional revenue through tax increases is being discussed, but health insurers have not been a part of the discussion.

FLORIDA: The Senate Health Committee and Senator Gaetz have asked the health insurance industry to sign a voluntary compact regarding coverage for cancer clinical trials. The compact would be similar to those signed in Georgia and New Jersey, to which Aetna was a signatory. A preliminary meeting was held last week at which concerns were raised. Aetna will continue to be engaged in these discussions.

KANSAS: Four state lawmakers announced last week that they are co-sponsoring a “Health Care Freedom Amendment” in the form of a Senate concurrent resolution that would add a new article to the Kansas Constitution to “preserve the right and freedom of Kansans to provide for their health care.” Essentially the resolution is the first step toward trying to opt out of any potential federal health care legislation. The co-sponsors expressed opposition to a federal health care plan, stating that Washington is ill suited to manage health care. If passed, the resolution will be on the ballot in the fall of 2010. The legislators expressed confidence that they have the votes to pass the measure, but they conceded that many members had yet to be contacted.

MICHIGAN: As the state’s budget crisis continues, legislators and engaged groups at the capitol are actively looking for ways to find revenue. Legislators and the Michigan Hospital Association have raised the issue of a 1.8 percent tax on all insurance claims paid, including disability and workers’ compensation. There have also been discussions about taking the life, health, and property & casualty guarantee fund(s) reserves, but no concrete proposal has been floated to date. In addition, Public Employee Health Care Reform Committee hearings continue regarding the consolidation of purchasing benefits for public employees in Michigan. To date, over 30 organizations have asked to make public comments. The Speaker said that the proposal is still evolving but that he expects it to expand to include vision, dental and disability/workers’ compensation benefits. Approximately $900 million in savings have been projected from administrative savings, economies of scale, “better benefits” and lower costs.

MISSOURI: The Missouri Speaker of the House, Ron Richards, has appointed an Interim Committee on autism spectrum disorders. The Committee will evaluate the impact autism spectrum disorders are having on families in the state. The committee’s goal is to identify a solution that considers medical, educational and insurance changes to improve the lives of families dealing with autism. Aetna was very involved with last session’s debate over an autism mandate and will continue to have a voice in this interim committee’s work. The next Missouri legislative session begins in January 2010.

OHIO: Two bills concerning physician/insurer relationships are moving in the Ohio legislature. A bill that passed out of the House on October 21 specifies that a material amendment to a health care contract does not become part of the contract unless agreed upon by both parties. A different bill passed the House Health Committee on October 14, and its companion bill had sponsor testimony on October 27 in the Senate Insurance, Commerce & Labor Committee. The bill would place various requirements on health insurers that operate a system for physician designations to assign a grade or rating for certain physicians. This bill includes what must be considered in the evaluations, disclosure requirements, appeal rights and legal remedies against an insurer if a provider is adversely affected by a violation of the requirements. It is sponsored by the Ohio State Medical Association. Aetna opposes both measures and continues to discuss what may be agreeable language for physician designation programs.

WISCONSIN: The Office of the Insurance Commissioner (OCI) is working on several regulations and bulletins regarding recently passed laws. The OCI has issued a revised bulletin summarizing the provisions of the 2009-2011 state budget that impact insurance, including: establishing a uniform application for individual major medical policies; expanding independent review rights to adverse findings regarding coverage denial determinations, including preexisting condition exclusion denials and rescissions; requiring an insurer to provide coverage for an unmarried child dependent who is not eligible for other group coverage and is under age 27 or a full-time student regardless of age; and requiring coverage for autism spectrum disorders and contraceptives. Related to implementation of the budget bill, OCI published an emergency rule on September 30, 2009 related to the coverage of treatment for autism spectrum disorders that is effective on Nov. 1, 2009.On issues unrelated to the budget bill, OCI has issued two regulations. First, OCI issued emergency rules providing for eligibility for continuation of coverage under the American Recovery and Reinvestment Act of 2009 (ARRA) for individuals whose group coverage is terminated. Second, the OCI recently issued a proposed rule intended to expand the eligibility requirements for guarantee issue of Medicare supplemental policies and bring Wisconsin rules more closely in line with the NAIC Medicare Supplement Model Regulation. The proposed regulations establish two new categories of eligible individuals for Medigap guaranteed issue; modify current regulations pertaining to Wisconsin’s “Plan M and N” look-alike plans to more closely follow corresponding NAIC model regulations; and reintroduce a high-deductible Medigap option.

Oct. 30, 2009

This Week in Health Care Reform

This week, lawmakers fine-tuned their reform proposals and, once again, the public option became the central issue of the health care reform debate.

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Senate and House Negotiations

Senate Majority Leader Announces Senate Bill that Includes Public Option: On Monday, Senate Majority Leader Harry Reid (D-NV) announced that the health care reform package from the Senate is expected to include a public option with an opt-out provision should a state choose to not participate in the government plan. While liberal Democrats cheered the inclusion of the government-run plan, some moderates – including Sens. Joe Lieberman (I-CT), Blanche Lincoln (D-AR), Evan Bayh (D-IN) and Mary Landrieu (D-LA) – all voiced concerns.

Sen. Lieberman said that he would vote to block the passage of the Senate health care reform bill in Sen. Reid’s proposed form. In addition, Sen. Olympia Snowe (R-ME), the only Republican to vote in favor of any health care reform legislation to date, stated that she is “deeply disappointed” with the inclusion of the public option.

This backlash comes as a blow to Sen. Reid and calls into question whether he has the 60 votes needed for final passage of the bill without an anticipated Republican filibuster. Sen. Reid has delivered a variety of proposals to the Congressional Budget Office (CBO) for cost estimates as he works to finalize the legislation.

Pelosi Unveils House Health Reform Bill: On Thursday, following weeks of negotiations to merge three bills passed by House committees last summer, House Speaker Nancy Pelosi (D-CA) unveiled the House’s 1,990-page health care reform legislation.

The merged legislation includes a version of the public option, favored by moderate Democrats, that uses reimbursement rates negotiated with private insurers rather than the option favored by liberal Democrats that pegs rates to Medicare. The bill also includes:

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Mandates for individuals and employers to purchase coverage (with some exemptions)
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Subsidies to help lower-income individuals purchase insurance
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An expansion of Medicaid eligibility to include individuals and families with incomes of up to 150% of the federal poverty level
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Taxes on the wealthy of 5.4% for individuals who earn more than $500,000 and for couples who earn more than $1 million
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Significant insurance market reforms
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Fees collected from the medical device industry totaling $20 billion

The House bill does not include the “Cadillac Tax,” a controversial tax on high-end insurance plans. And, House Democrats indicated that party leaders have yet to resolve long-standing disagreements regarding coverage for abortion and illegal immigrants.

This bill is estimated to cost just under $900 billion over the next 10 years. However, the legislation does not address Medicare physician payments and instead moves this portion of the proposal to a separate bill, which is anticipated to increase the U.S. budget deficit by more than $200 billion over 10 years.

Senate and House Propose Lower Medical Device Industry Fees: In the bill originally passed by the Senate Finance Committee, fees collected from the medical device industry would have totaled $40 billion over 10 years. Lawmakers from both the Senate and the House are proposing lower fees. In the emerging Senate legislation, Sen. Reid is expected to adjust the fees to between $15 and $20 billion over 10 years. By comparison, the House version includes a tax that would be imposed at the point of sale, thereby spreading its impact across manufacturers, wholesalers and distributors, and would yield $20 billion between 2013 and 2019.

Additional Activities

U.S. Business Group Opposes Public Option: On Wednesday, The Business Roundtable, comprised of chief executives at Verizon Communications, JPMorgan, General Electric, Wal-Mart and other companies, said the federal government is inefficient and would underpay providers while driving up costs for employers and their workers.

Public Opinion

American Opinion on Public Option Remains Steady: The October Kaiser Family Foundation poll found that 55% of Americans believe that it is now more important than ever to take on health care reform, while 41% say the country cannot afford it, results that are unchanged from the previous month. Other findings include:

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Americans’ support for taxing the wealthy to pay for reform decreased slightly in October, while support for taxing insurance companies increased.
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Americans still worry about the potential impact of the reforms on measures such as wait times, cost and choice of providers.
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Most Americans believe that health care reform will deliver changes immediately. About half of Americans believe that if Democrats pass health care reform legislation, help for the uninsured and consumer protections in the insurance market will begin within a year. In actuality, however, most of the reform provisions will take years to kick in.

Looking Ahead

Sen. Reid awaits CBO financial estimates to finalize the Senate bill before bringing it to the Senate floor. The House bill will be submitted to the full House for debate as early as next week.