An unexpected health care ruling leads to turmoil

  

Friday night’s ruling by a federal district judge in Texas v. Azar that the Affordable Care Act (ACA) is unconstitutional has created fresh uncertainty in the U.S. health care system. While the ruling does not immediately impact the health law itself, it could potentially upend the American health care system in significant ways.

Members of Congress on both sides of the aisle immediately vowed to take steps that would retain the ACA’s protections for patients with pre-existing conditions and Essential Health Benefits (EHB) while the case continues to make its way through the legal system (experts widely believe that Friday’s decision will be appealed to the Fifth Circuit Court of Appeals and could ultimately reach the Supreme Court).

ANA’s official statement noted that “This ruling puts at risk access to quality, affordable, and accessible health care for the millions of Americans whose lives have improved due to the coverage expansions and consumer protections under the ACA.”

Incoming Senate Finance Committee Chairman Chuck Grassley (R-IA) promised on Twitter that his committee would hold hearings on the ruling, and that he would work with Democrats to “strengthen” the ACA through legislation, while Sen. Susan Collins (R-ME) said she was sure the ruling would be overturned and that “There is widespread support for protecting people with preexisting conditions.”

Senate Minority Leader Chuck Schumer (D-NY) vowed to press for a vote on the Senate floor “urging an intervention in the case,” and House Minority Leader Nancy Pelosi (D-CA), widely expected to lead Democrats as Speaker in the 116th Congress, pledged to “move swiftly to formally intervene in the appeals process.”

President Trump indicated via Twitter that a potential Supreme Court ruling that upheld Friday’s decision would offer an opportunity to work in a bipartisan fashion “to deliver great health care.” He called on lawmakers to formulate and pass a replacement for the ACA, despite the limited success of previous efforts to do so.

Seema Verma, Administrator of the Centers for Medicare & Medicaid Services (CMS), was quick to clarify via social media that the ruling would not adversely impact consumers who were still shopping for individual health insurance coverage during the Open Enrollment period that ended on Saturday, December 15th. In a formal statement, the Department of Health and Human Services (HHS) echoed this point, noting that “This decision does not require that HHS make any changes to any of the ACA programs it administers or its enforcement of any portion of the ACA at this time.”

The Texas v. Azar lawsuit was brought following the congressional repeal of the individual mandate in December 2017 as part of the Tax Cuts and Jobs Act. The Texas Attorney General, along with AGs in 19 other states, argued that this repeal eliminated the Supreme Court’s rationale for finding the individual mandate constitutional in the 2012 Supreme Court decision NFIB v. Sebelius. Though driven by these states, the focus will now shift to Congress, following an election cycle in which support for major provisions of the Affordable Care Act and health care in general were key campaign issues.

White House Report Promotes Full Practice Authority for RNs and APRNs

  

The White House yesterday released a report entitled “Reforming America’s Healthcare System Through Choice and Competition” that describes the influence of state and federal laws, regulations, guidance, and policies on choice and competition in health care markets and identifies actions that states or the federal government could take to develop a better functioning health care market.

This report bears great news for RNs and APRNs. It recognizes and promotes the role that RNs and APRNs play in patient care and recommends that the federal government and state governments should allow RNs and APRNs (and other allied health professionals) to practice to the full extent of their education and training. The report makes the following recommendations regarding scope of practice:

  • States should consider changes to their scope-of-practice statutes to allow all healthcare providers to practice to the top of their licenses, utilizing their full skill sets.
  • The federal government and states should consider accompanying legislative and administrative proposals to allow non-physician and non-dentist providers to be paid directly for their services where evidence supports that the provider can safely and effectively provide that care.
  • States should consider eliminating requirements for rigid collaborative practice and supervision agreements between physicians and dentists and their care extenders (e.g., APRNs, physician assistants, hygienists) that are not justified by legitimate health and safety concerns.

The report also promotes the use of telehealth services, noting that, “telehealth has great potential to improve access in underserved locations, reduce costs, and generate improved short- and long-term health outcomes.” The report makes several recommendations regarding telehealth:

  • States should consider adopting licensure compacts or model laws that improve license portability by allowing healthcare providers to more easily practice in multiple states, thereby creating additional opportunities for telehealth practice.
  • States and the federal government should explore legislative and administrative proposals modifying reimbursement policies that prohibit or impede alternatives to in-person services, including covering telehealth services when they are an appropriate form of care delivery.
  • States generally should consider allowing individual healthcare providers and payers to mutually determine whether and when it is safe and appropriate to provide telehealth services, including when there has not been a prior in-person visit.
  • Congress and other policymakers should increase opportunities for license portability through policies that maintain accountability and disciplinary mechanisms, including permitting licensed professionals to provide telehealth service to out-of-state patients.

ANA’s comments to the Medicare Payment Advisory Commission (MedPAC) expressed our support to expand telehealth services to Medicare beneficiaries, especially in areas in which RNs and APRNs provide care, and ANA encourages the administration to continue to consider the role that RNs and APRNs – able to practice to the full extent of their education and training – play in providing primary care, telehealth, and other health care services to increase access to beneficiaries, also recognizing that reimbursement is necessary to not only provide the services, but to also fill the void in certain specialties and geographies.

ANA applauds the White House for recognizing through this report the crucial role that RNs and APRNs play in the U.S. health care system and for promoting innovative telehealth strategies that will better allow them to practice to the full extent of their education and training. ANA also commends the administration’s recent expansion – through the CY 2019 Medicare Part B Physician Fee Schedule final rule – of telehealth services for prolonged preventive health services and for purposes of treatment of a substance use disorder or a co-occurring mental health disorder. These common-sense strategies will allow RNs and APRNs to maximize their significant contributions to quality patient care and outcomes.

Congressional Action in December

  

Lame Duck Watch

Now that the midterm elections have passed, the 115th Congress has entered its biannual period referred to as a “lame-duck” session. Some lawmakers who return for the lame-duck session will not be in the next Congress because they are retiring or lost their reelection. For that reason, they are referred to as lame-duck members. Lame-duck sessions are never predictable and can occasionally lead to high stakes drama. Here are a few issues we’re taking note of as the lame-duck gets underway.

Government Funding

Yesterday, President Trump threated to shut down the federal government if Congress does not give him $5 billion to build a wall on the U.S.–Mexican border that he campaigned on. Democrats have only agreed to $1.6 billion in funding. If Congress doesn’t pass seven appropriations bills by December 7, nonessential operations at multiple federal agencies will come to a halt due to a lack of funding.

Senate Appropriations Committee Chairman Richard Shelby has stated that a one-year continuing resolution (CR) is likely unless negotiators make significant progress on an agreement on border wall funding by next week, but did not rule out another short-term CR if there is some progress.

A continuing resolution funds the government at the same levels as the previous fiscal year for a set amount of time. Many Republicans would prefer a one-year CR be completed before Democrats take control of the House next year, rather than risk a shutdown which could give Democrats leverage in appropriations negotiations.

Title VIII

Senate Health Education Labor & Pensions Committee Chairman Lamar Alexander announced that there would not be another markup for the Committee this year. This means that Title VIII reauthorization will not happen in 2018. It’s a very unfortunate development after the House passed reauthorization unanimously on a voice vote in July. ANA and the Nursing Community Coalition will continue to fight for this long overdue reauthorization.