Congress Aims to Keep Campaign Promises on Health Care as Courts Continue to Review Administration Policies

  

By: Gregory Craig and Matthew Fitting

Following a midterm election cycle in which voters consistently listed health care as their top issue priority, members of the 116th Congress have wasted no time in proposing, introducing, and debating several measures that would significantly impact the way Americans receive and pay for health coverage.

Health Care Legislation in the U.S. House of Representatives

Most recently, Rep. Frank Pallone, Jr. (D-NJ), the Chairman of the House Energy and Commerce Committee, on March 26, 2019 introduced H.R. 1884 – the “Protecting Pre-Existing Conditions and Making Health Care More Affordable Act of 2019”. This legislation would strengthen many of the consumer protections and pre-existing conditions provisions of the Affordable Care Act (ACA), promote individual health insurance enrollment on the ACA Marketplace, and roll back regulatory actions that the administration has implemented since January 2017. Some of the specific provisions would:

  • Expand income-based eligibility for premium tax credits used to purchase individual health insurance coverage and increase tax credits for all income brackets, allowing more individuals to purchase subsidized health insurance coverage;
  • Fix the so-called “family glitch” to make it easier for low- and middle-income individuals to purchase subsidized family coverage;
  • Rescind the administration’s final rule expanding the availability of Association Health Plans (AHPs) that can circumvent many of the ACA’s consumer protections, specifically those involving Essential Health Benefits (read ANA’s comment letter on AHPs here);
  • Rescind the administration’s final rule expanding the availability of short-term, limited duration insurance plans, which are not required to comply with any of the ACA’s consumer protections (read ANA’s comment letter on short-term, limited duration insurance here);
  • Require the Department of Health and Human Services to conduct marketing and outreach for open enrollment with $100 million in annual appropriations (read ANA’s plan year 2018 open enrollment report here);
  • Establish a state-based reinsurance program that would allow states to set up their own reinsurance programs, or to use the funds to provide premium subsidies or cost-sharing support, with a federal reinsurance program as a backstop.

ANA has publicly supported many of the provisions in H.R. 1884 and has consistently promoted a bipartisan proposal – similar to the reinsurance proposal included in H.R. 1884 above – that Sens. Lamar Alexander (R-TN) and Patty Murray (D-WA) introduced in the previous Congress that would have established a similar program and restored cost-sharing payment reductions that help low-income individuals afford co-insurance and deductible costs (the Administration canceled these payments in October 2017).

The proposal that has arguably grabbed the most headlines, however, is “Medicare for All,” a general campaign slogan that was recently introduced as legislation by Rep. Pramila Jayapal (D-WA) with a Senate bill soon to follow to be introduced by Sen. Bernie Sanders (I-VT). The bill would implement an expanded government-run Medicare program and do away with much of the private insurance system currently in place (well over half of Americans currently receive health insurance through their employer or in the Marketplace).

While the legislation is consistent with ANA’s support for universal access to health coverage, there are several provisions that could negatively impact the nation’s four million registered nurses, as well as the patients for whom they provide care. Some of these include:

  • A fee-for-service program that could significantly reduce payment rates and have a trickle-down effect on Advanced Practice Registered Nurses (APRNs), who are currently reimbursed at 85% the rate that Medicare reimburses physicians for the same work;
  • A Medicare Trust Fund that could lead to uncertainty around payments and impact access to care should beneficiary access to services exceed the fiscal year budget;
  • The establishment of regional offices charged with recommending changes in provider reimbursement and establishing quality assurance mechanisms for their regions, which could lead to a patchwork of coverage and tempt providers to practice where reimbursement rates are higher.

Federal Courts Reviewing ACA Provisions

The Department of Justice on March 25 unexpectedly sent a letter to the Fifth Circuit Court of Appeals to state that the Administration fully supports the December 2018 U.S. District Court decision in Texas v. Azar that would invalidate the entire Affordable Care Act (the U.S. District Court decision was stayed pending appeal; the Administration had previously only supported striking down parts of the ACA, including pre-existing conditions provisions). This case will likely make its way to the U.S. Supreme Court for a final decision, though that decision would probably not come until 2020 or later. Invalidating the entire ACA with no plan to replace it would be extremely disruptive to the U.S. health care system and would result in enormous insurance coverage and financial losses.

On March 27, the Federal District Court for the District of Columbia threw out Medicaid work requirements in both Kentucky and Arkansas. This is the second time that Kentucky’s Medicaid work requirements have been blocked in federal court. Arkansas’ work requirements were implemented in June 2018 and have resulted in 18,000 individuals losing coverage. The same federal court on March 28 issued a ruling that rejects the administration’s final rule that expands the availability of Association Health Plans. ANA has consistently opposed expanding the availability of these plans, as they represent an end-around of the ACA’s essential health benefits requirements for insurance coverage.

ANA’s Commitment to Universal Access to Quality Health Care

ANA is committed to a pragmatic approach to ensuring universal access to quality, affordable, and accessible health care for all Americans, particularly vulnerable populations and those with pre-existing conditions. As ANA stated in a recent press release: “Universal access to a standard package of essential health care services for all citizens and residents is of paramount importance to the American Nurses Association. Nurses have a critical voice in this debate, and ANA is committed to advancing policy initiatives that provide and expand access to affordable coverage and quality care for all.”

This is the latest chapter in the decades-old health care debate – we expect that many proposals will be offered before the 2020 election. ANA will continue to be involved and actively advocate for nurses and the patients for whom they provided care.

Courts Block Rules That Would Restrict Women’s Access to Reproductive Health Care Services

  

Federal courts this week blocked two Interim Final Rules (IFRs) from the U.S. Department of Health and Human Services (HHS) that would have significantly expanded the ability of employers to deny coverage of contraceptives for female employees on the basis of religious or moral objections.

On January 14th, the U.S. District Court for the Eastern District of Pennsylvania issued an order granting the motion for a preliminary nationwide injunction blocking the implementation of the two IFRs from HHS that would have expanded the ability of employers to cite moral and religious objections in seeking exemptions from the Affordable Care Act’s (ACA) contraceptive mandate. That mandate requires all employers that provide employer-sponsored insurance for their employees to cover contraceptives, with narrow exemptions (e.g., religious entities and closely held for-profit corporations).

The Pennsylvania ruling followed a January 13th ruling from the U.S. District Court for the Northern District of California also blocking the implementation of these two IFRs in the 13 plaintiff states in that lawsuit (California, Connecticut, Delaware, Hawaii, Illinois, Maryland, Minnesota, New York, North Carolina, Rhode Island, Vermont, Virginia, Washington), plus the District of Columbia; the judge in the Northern District of California prominently cited ANA’s amicus curiae brief in his order granting the motion for a preliminary injunction.

These IFRs would be particularly damaging given the administration’s proposed regulatory changes to Title X funding, which provides grants for critical family planning services for millions of Americans, particularly low-income women. HHS itself notes in its analysis of the blocked IFRs that they would result in over 125,000 more women relying on Title X programs for reproductive health care services, even as the administration has taken steps that would restrict the ability of Title X programs to provide those services.

These injunctions block HHS from implementing the two IFRs, which were supposed to go into effect on January 14th; the narrower Obama-era exemption policy remains in place during the injunction. It is worth noting that two nearly identical IFRs were also blocked in the same district courts in December 2017. Experts widely expect the defendants in these cases to appeal to the U.S. Courts of Appeals in the Third Circuit and the Ninth Circuit, respectively.

ANA firmly believes in universal access to comprehensive and affordable health care services for all Americans. Access to basic, preventive reproductive health care, such as birth control, cancer screenings, STI testing and treatment, and well-woman exams is critical to the overall well-being of women of all ages and is an essential health benefit. ANA will continue to advocate for universal access to quality, affordable, and accessible health care services, including basic, preventive reproductive health care services, for all Americans.

States and Trump Administration Push to Roll Back Health Care Gains

  

The Trump administration’s repeated dismissal of some of the most important provisions of the Affordable Care Act (ACA) – such as its protections for individuals with pre-existing conditions and its requirement for insurers to cover Essential Health Benefits – has been evident for some time. Now a Government Accountability Office (GAO) report places much of the blame for the dip in ACA enrollment last year at the feet of the administration.

8.7 million Americans enrolled in health insurance plans offered through the ACA’s individual health insurance marketplace in 2018, a five percent decline from the 9.2 million who enrolled in plans in 2017. The report attributes much of this decline to the administration’s failure to set enrollment targets, reduction in funding for outreach and enrollment, confusing messaging, and chaotic policy decisions – including the decision to end cost-sharing reduction payments.

ANA joined with other patient and provider groups in an attempt to fill some of this gap through its own Open Enrollment advocacy and outreach campaign in late 2017, which resulted in more than 40,000 visits to Healthcare.gov as well as local and national media visibility. GAO recommended that the administration set enrollment targets for 2019 to alleviate this decline, though given the administration’s repeated sabotage of the law – including its work with Congress to try to repeal it – this seems highly unlikely to happen.

Regardless of what happens at the federal level, states are still attempting to implement policies that erode access to quality, affordable health care. Three states (Arkansas, Indiana, and New Hampshire) have implemented CMS-approved 1115 Medicaid waivers that impose work requirements on certain adult Medicaid beneficiaries (Kentucky’s work requirements policy was recently invalidated in federal court). Several other states, such as Ohio, have pending 1115 Medicaid waivers that would allow them to impose work requirements on certain adult Medicaid beneficiaries.

Worryingly, some states such as Mississippi – which hasn’t expanded Medicaid – have also applied for waivers to impose work requirements, which would greatly restrict access to care for some of the most vulnerable Americans. And Tennessee has submitted a waiver request to the administration that would bar Planned Parenthood from participating in its Medicaid program – and in the process prevent hundreds of thousands of Tennessee residents from accessing critical health care services. All of these restrictive proposals, of course, require federal approval, which the Trump administration seems to be strongly inclined to grant.

ANA firmly believes in universal access to comprehensive and affordable healthcare services for all Americans. These recent moves by both the Trump administration and state governments fly directly in the face of that goal and represent major steps backward in the effort to ensure that all Americans – especially vulnerable populations such as low-income women and those with pre-existing conditions – have access to all necessary healthcare services.

Healthcare stands to be a major issue in the 2018 midterm elections – 22 percent of respondents to a June 2018 NBC News/Wall Street Journal poll named healthcare as the most important factor in deciding their vote. These elections in November are an incredibly important opportunity for ANA’s members to make their voices heard when it comes to determining the future of healthcare in this country. We urge you to make nursing’s voice heard loud and clear by supporting candidates who align with ANA’s principles for health system transformation and who are proven to be advocates for nurses and their patients!