Recently barred fast track resolution by the U.S. Supreme Court, opponents of the Affordable Care Act (ACA) have resumed their legal quest to derail the law through the traditional Circuit Court route. Twenty-six states last week filed a motion in the 11th Circuit Court of Appeals in Atlanta urging the court to strike down the health care overhaul law. The motion asks the court to uphold a Florida federal judge’s ruling that the law’s core requirement, that everyone purchase health coverage, is unconstitutional. The filing comes about a month after the Obama administration formally appealed the Florida ruling. Once the 11th and 4th Circuits rule on ACA appeals, the U.S. Supreme Court is finally expected to take on the issue and become the final arbiter — but probably not until late 2012.

Federal

Last week the Republican-controlled House approved two bills  that would repeal funding for construction of school-based health centers and assist the states in establishing school-based health centers, as otherwise authorized by ACA.  Both items are part of a package of bills that are coming to the House floor to either repeal or revise ACA provisions that provide funding for various parts of the health care reform law. Neither will make it though the Democratic Senate, nor get past the President’s veto pen. This effort is all about setting up various lines in the sand from which to bargain with respect to the bigger battle over the budget and the national debt.  Whether either side will back down remains unclear. But it is clear that Republicans and Democrats are preparing for a major fight just around the corner.

On the Senate side, the top Republican on the Senate Finance Committee, Senator Orrin Hatch (R-UT), introduced legislation designed to further erode a provision of ACA.  The Senator’s legislation proposes repeal of the Medicaid/CHIP Maintenance of Effort (MOE) provision in ACA, which would give the states financial relief from the funding requirements demanded by ACA.  While the House companion bill (Congressman Phil Gingrey, R-GA) may have better luck than the Hatch bill in the Senate, this effort may have more life than other anti-ACA proposals because the states are in dire financial straits and both Republican and Democratic governors are clamoring for relief from Washington.

States

CALIFORNIA: The 2011 version of a hospital transparency bill was unanimously voted out of the Senate Health Committee last week. The legislation would prohibit hospitals from including provisions, commonly referred to as “gag-clauses,” in contracts with health insurers. These provisions prevent disclosure of hospital cost and quality information to health plan members. Individual hospital systems, the UC System and the California Hospital Association continue to oppose the bill, while insurers, payers and labor unions support the measure.  Also, the Senate Health Committee last week announced its new policy of making almost all benefit mandate proposals two-year bills. The Chair believes that the legislature should wait until the federal government defines essential health benefits under the ACA.  The only exception to this committee policy will be the maternity mandate bill, which the Chair believes is certain to be part of the essential benefits package.  There have been a dozen benefit mandates bills introduced this year.

COLORADO:  The Colorado General Assembly passed an insurance exchange bill after the Senate concurred to amendments added by the House. Passage of the bipartisan-sponsored bill is the culmination of nearly nine months of work that drew the support of the governor, business and the health insurance industry. Key bill provisions include:

Establishes an exchange as a nonprofit, unincorporated public entity
Designed to foster a competitive market, the exchange shall not solicit bids or engage in the active purchase of insurance
No duplication of Division of Insurance regulatory authority, including rate review
All carriers licensed in Colorado may be eligible to participate
Governed by a nine-member board of directors appointed by the governor and legislative leadership; plus three non-voting ex officio members
Majority of voting board members shall not be directly affiliated with the insurance industry
A legislative implementation review committee will review grant applications, financial and operational plans and have the ability to propose up to five bills per session
No separate state appropriation was made to fund the implementation

The bill does not address substantive issues such as the merging of the individual and small group markets or the size of eligible small employers.

CONNECTICUT: Governor Dannel Malloy last week signed a biennium budget bill, without a proposed increase in the premium tax. To avoid paying million in retaliatory taxes to other states, insurers supported temporarily lowering the amount of premium tax credits that can be used, from 70 percent to 30 percent for two years.  The budget includes the tax credit measure, which will sunset in 2013 .

Legislators are now focusing on other issues, including rate review. If enacted, the current rate review bill would: require a lengthy notice and public hearing timeline for all proposed rate increases; authorize the Healthcare Advocate and the Attorney General to be parties to any hearing; and broadly define “excessive” to include consideration of commissions, transfer of funds to a holding or parent company, the rate of return on assets or profitability, and a “reasonable” profit margin. The bill would also require that plans send written notice to insureds or subscribers of both the proposed rate and, later, the new rate. This bill would be effective July 1, 2011. The estimated cost of holding hearings for all proposed rate increases of 10 percent or more is million, for a department that has an annual budget of million. The bill was voted out of the Appropriations Committee nonetheless. If the bill were to be voted on today, it likely would pass. However, Insurance Commissioner Thomas B. Leonardi raised concerns about the potential cost and workload. The current law allows for the insurance commissioner to hold a rate hearing at his discretion. Leonardi said rates that aren’t justified by actuarial science will be rejected. Senate Insurance Chair Joe Crisco called the bill a “work in progress” and said he and other legislators will be working with Leonardi.

KANSAS: Kansas has joined the growing list of states asking the federal Department of Health and Human Services (HHS) for a waiver of ACA’s minimum loss ratio (MLR) requirements. If granted, the waiver would allow Kansas carriers until 2014 to fully comply with the 80 percent requirement under federal law. In a letter to HHS Secretary Kathleen Sebelius, Insurance Commissioner Sandy Praeger proposed a rule modification for the individual market to allow for a gradual implementation of the 80 percent requirement. The waiver would offer companies appropriate time to adjust their business practices and maximize opportunities for new companies to enter the Kansas market. The current MLR requirement for major medical coverage in the state’s individual market is 55 percent.  Commissioner Praeger’s letter proposes adjustments to the MLR standard at 70 percent in 2011, 73 percent in 2012, 76 percent in 2013 and 80 percent in 2014. To date, Maine is the only state to have received approval from HHS for a waiver. Guam and nine other states — Florida, Georgia, Iowa, Kansas, Kentucky, Louisiana, North Dakota, Nevada, and New Hampshire — have submitted waiver applications that are pending.

MAINE: The House last week voted 76-72 to approve an ambitious health care reform bill introduced by the Republican majority. The bill would overhaul Maine’s health insurance system and create a new one designed to foster more competition. If enacted, the bill would repeal Maine’s standard benefit package and geographic access rules (Rule 750 and Rule 850) and expand the rating bands to open up the individual and small-group insurance market to greater competition. The changes in rating for individual health plans and small group plans would be phased in over four years, with a maximum rate differential of 1.5:1 to 5:1, based on age, for individual and small group health plans. The bill also would authorize the renewal of short-term health insurance policies for a period not to exceed 24 months, instead of the current 12-month limit. By 2014, the bill would allow Maine residents to purchase insurance across state lines in four New England states: Connecticut, Massachusetts, New Hampshire or Rhode Island. In addition, it would establish an individual market reinsurance pool to be funded through a covered lives assessment capped at per month, per person. The bill is likely to pass the Senate as well, where Republicans hold a 20-14 majority.

In other legislative action, the Health and Human Services Committee heard testimony on a bill to repeal Maine’s 2003 Pharmacy Benefit Management (PBM) law. The law requiring PBMs to disclose contractual agreements with drug makers has been detrimental to the growth of competition. Medco testified that the law has led the company to turn down business in Maine. Express Scripts and Caremark, which is owned by drugstore chain CVS, also testified in support of repeal, portraying the law as the “most extreme in the country.” Michael Cianchette, an attorney for the LePage administration agreed, saying that Maine should conform to the national norm. Community pharmacies, which face competition from PBMs’ mail-order operations, oppose the repealer.

NEW JERSEY: Both chambers of the legislature are fully engaged in budget hearings as the legislative and executive branches work toward passing a balanced budget by the June 30 deadline. Proposed changes to Medicaid have been a hot button issue, as the state attempts to address a .3 billion deficit in the program.  The Department of Human Services testified that it has already started moving 200,000 Medicaid participants to managed care plans and will be working the Department of Health and Senior Services to take similar action with the long-term care population.

On the legislative front, Senate President Stephen Sweeney announced last week that he will be amending his bill to reform health benefits for public sector employees. The current legislation calls for a moratorium on governmental entities joining the State Health Benefits Plan (SHBP).  Due to alleged conflict of interest claims, the Senate President has decided to remove this provision, which will continue to allow local governments the option of providing health benefits through either a commercial plan or the SHBP. Reform of public employees’ benefits is major part of Governor Chris Christie’s initiative to save more than 0 million in the coming fiscal year.

NEW YORK: The New York City Human Resources Administration (HRA) wants the state to be aware that a statewide exchange solution may not work well for them. The HRA released a brief discussing the creation of a Navigator program, which gives grants to qualified organizations to provide health insurance education and enrollment assistance services. HRA’s brief focuses on such a program in the city and looks at the most effective ways to implement the required services.

OKLAHOMA:  The health care compact measure pressed by state Sen. Clark Jolley cleared the House last week and now returns to the state Senate for final consideration. The bill lays out the basis for Oklahoma’s participation in an agreement with other states in an attempt to restore authority and responsibility for health care regulation to member states. The compact would allow Oklahoma to create health care policies by joining an interstate compact that supporters believe supersedes prior federal law. The compact, which has been introduced in 14 states, was signed recently into law in Georgia. The concept is also advancing in Missouri, where a compact proposal cleared the state Senate and is headed to Governor Jay Nixon. Compact proposals are also alive in Montana, Colorado and Texas.

TEXAS:  Republicans pushed the next two-year budget through the Texas Senate last week by using a procedural maneuver to bypass Senate tradition requiring a two-thirds agreement to consider any legislation. Senators voted 19-12, along party lines, to approve the plan. The move clears a path for negotiations to begin with the House on the 6.5 billion spending plan. The plan would make about billion in cuts, which is less severe than those in the bare-bones House version. Public schools and Medicaid providers, including nursing homes, would take the brunt of the cuts. In the face of criticism on both sides of the aisle, Senator Steve Ogden, the bill author, offered an amendment that stripped about billion in rainy-day fund money from the budget. The move helped garner support from conservative Republican senators but cost the support of key Democrats.

Ogden’s GOP-condoned compromise replaces about billion in rainy-day money by underfunding Medicaid, pushing those payments to the end of the budget period. Absent increased revenue from an improving economy, the budget would then force across-the-board cuts to state agencies other than basic public school operations. Ogden’s plan underfunds public schools by about billion. It cuts reimbursement rates to Medicaid providers by 6 percent, compared to more than 10 percent proposed in the House. Senate leaders are bracing for tough negotiations with the conservative House. The state is facing a revenue shortfall of at least billion. The legislature has until May 30 to reach a deal and avoid a special session to resolve the issue.

VERMONT: The House last week voted to approve a single-payer measure, which now advances to the governor’s desk for signing. Governor Peter Shumlin is expected to sign it. The bill passed in the House by a vote of 94-49 and was passed earlier in the Senate by a 21-9 vote. In addition to establishing a single-payer system, the bill would establish new rate review requirements and a Vermont Health Benefit Exchange that would be operational by 2014, in accordance with the ACA. A single-payer system would begin in 2017, when the ACA begins to allow states to request waivers to opt out of many of its requirements, or earlier with federal approval.

A weekly compilation from Aetna of health care-related developments in Washington, D.C. and state legislatures across the country. EasyToInsureME has the answers.

Week of April 25, 2011

The U.S. Supreme Court announced Monday that it had rejected a request from the state of Virginia to fast-track its challenge of the Affordable Care Act (ACA), which was signed into law in March 2010. The Court did not disclose the reasons behind its decision.  Since the 4th and 11th Circuits will be hearing arguments in the next two months on the constitutionality of the individual mandate, it is much more likely that once these two Circuits have spoken the Supreme Court will be more inclined to resolve the matter with some finality.

While the lawsuits filed by a number of states march on through the normal appeals process, some of the states are taking the unusual step of turning down money available to help fund implementation of the law. Oklahoma, for one, has turned down .6 million in demonstration grants to distance itself from the law. But Idaho Governor C.L. “Butch” Otter upped the ante last week when he issued an executive order prohibiting state agencies from implementing any aspect of the health reform law and from accepting federal funds tied to implementation of the law. While some question whether such outright defiance of the law would hold up as constitutional, the situation underscores the bitterness felt by some state leaders toward the law. In some cases, implementation can be expected to move at a snail’s pace, if at all, until the U.S. Supreme Court weighs in on the issue.

Federal

With Congress on recess last week, there is no Federal report for this week.

States

ARIZONA:  The legislature adjourned last week after a contentious and partisan session. Governor Jan Brewer has until May 2, to sign or veto legislation, but the final status on several bills affecting health insurers and their customers is already known:

A bill that would have established the Arizona Health Exchange, governed by a board of directors that included insurer representation, was voted out of committee but did not make it out of the House. The legislation was based on the NAIC model.
A bill that would have required health insurers to provide a written claims information report within 30 days of receiving a request from a plan, plan sponsor, or plan administrator was passed in both chambers but died when a required conference committee failed to consider the matter prior to adjournment.
A bill that would have established the procedural mechanisms for an interstate compact to work with other states to avoid implementing provisions of the ACA was passed by both chambers but was vetoed by Governor Jan Brewer.
A bill that would have prohibited contracts from requiring providers to assume the cost of acquiring vaccines and would have mandated reimbursement of providers for vaccine acquisition costs and administration was scrapped. Health insurers committed to meeting with the Arizona Academy of Pediatrics to reach a resolution without legislation.

In other matters, the Department of Insurance announced that it will hold a series of community meetings around the state to provide information about health insurance premiums in the individual and small group markets.

CALIFORNIA:  Governor Jerry Brown signed a bill into law last week that eases administrative and cost burdens on employers and individuals, come tax time, by conforming to federal rules relating to the taxation of dependent coverage. As a result, employers and their employees will not have to deal with the complications of complying with differing tax rules.  Aetna joined a diverse coalition of business, labor, and other groups in helping to focus attention on the need for this legislation. Also, the California Health Benefits Exchange board met for the first time last week, a step toward implementing the first reform-prompted insurance exchange in the nation. The Board spent most of it time on administrative decisions and announced the appointment of interim administrative director, Pat Powers, who is now president of the nonprofit Center for Health Improvement.

In other news, Aetna is seeking amendments to a bill that would direct state regulators to develop a single prior authorization form to be used by providers and plans in seeking authorization for prescriptions.  The bill already has been amended to reflect some the industries’ concerns. But other issues remain to be resolved, including the timeframe that plans would be allotted to approve prior authorization requests.  Aetna and others are seeking more flexibility on that issue and want to ensure the legislation does not conflict with what CMS or other national workgroups are developing. The bill passed the Senate Health committee last week.

CONNECTICUT:  The Governor and legislative leadership announced a budget deal last week that does not include a proposed premium tax increase. A premium tax increase (from 1.75 percent to 1.95 percent) was designed to raise million for the state but would have triggered retaliatory taxes for Connecticut-domiciled insurers, including Aetna, sending approximately million to other states. A coalition that included Aetna, the state trade association, property/casualty insurers and life insurers was able to convince state leaders that lowering tax credits (until 2013) to drive about million in new revenue was a better id.

The administration and Democratic legislative leaders also announced an agreement on the proposed SustiNet state-run health plan. This agreement combines aspects of the SustiNet bill with the Connecticut Healthcare Partnership bill.  The new deal calls for opening the state employee health plan to municipalities and some non-profits but not to the public. The agreement also would establish a “SustiNet cabinet” advisory panel within the lieutenant governor’s office to oversee health reform efforts in the state. The agreement does not call for the state to combine the Medicaid and state employee and retiree health plans into a large pool (as the current SustiNet proposal would).  Legislative language for the new proposal is still being developed, but it is clear the bill will not include the SustiNet quasi-public authority or a public option.

In the next fiscal year, municipalities would be allowed to buy coverage through the state employee and retiree plan, under the new agreement. Non-profits that have contracts with the state could buy in beginning the following fiscal year. The agreement does not include allowing small businesses to buy coverage through the state employee plan. Whether the state health plan is ultimately expanded further will depend how the initial round of pooling goes and whether expansion is considered necessary once federal health reform rolls out. As part of health reform, the state plans to establish an insurance exchange by 2014.

GEORGIA: America’s Health Insurance Plans (AHIP) will be submitting a letter to Governor Nathan Deal urging him to veto prompt-pay legislation that would apply insurer claims-payment standards to self-funded plans.  Also passed and awaiting the Governor’s signature is a bill that would allow for sale of coverage across state lines.

MAINE: A revised state supplemental budget that covers a million gap between revenues and spending is now law. Last week Gov. Paul LePage signed the bill, which had unanimous, bipartisan support. Most of the million gap resulted from cost overruns in the state Department of Health and Human Services. The supplemental budget appropriated unspent funds from various state agencies to fill the gap. The budget addresses spending in fiscal 2011, which ends June 30. A two-year budget starting July 1 is still being deliberated.

NEW YORK: Less than one week after the Cuomo administration held a meeting to gather input on a health insurance exchange, Senate Republicans will hold their own open Roundtable on Exchanges this week to gather similar input. The roundtable discussion will be chaired by Senate Insurance Committee Chair Jim Seward and Senate Health Committee Chair Kemp Hannon. Although only trade associations were invited to participate, the meeting will be open to observers. At the administration’s first exchange meeting, the consumer lobby made it clear that they support an exchange that is either a government agency or public authority that is an active purchaser. The NYS Association of Health Underwriters advocated for a merger of the individual and small group markets combined with an expanded definition of small groups up to 100. Some small businesses, however, spoke against such a merger. The Business Council of NYS made the point that an exchange with all of New York’s mandated benefits, aggressive purchasing and extensive consumer components may not be sustainable.  There was no discussion of financing. It is anticipated that future meetings and public hearings will be scheduled by the Cuomo administration to solicit public input.

Citizen Action of New York is pushing for a health insurance exchange that is exactly opposite of the market-based model advocated earlier this month by the Manhattan Institute. The consumer group said in a statement last week that some of the recommendations of the pro-business Manhattan Institute “would undermine the rights of consumers.” Citizen Action’s research and education affiliate, Public Policy and Education Fund of New York, recommends one statewide exchange that functions as an independent authority and coordinates its enforcement efforts with the state Insurance Department and the attorney general. Citizen Action also wants heavy consumer representation on the governing board and a significant increase in penalties for violations of the new federal law.

TEXAS: The House passed a bill  that would allow the state to enter into a health care “compact” with like-minded states. The bill, passed on a party line 102-46 vote, is a grab for some of the control over health care currently held by the federal government. Lawmakers in several other states are considering similar initiatives. The bill would require at least one state partner and approval from Congress before it could go into effect. Proponents say the bill would help Texas stretch its health dollars further and better deal with spiraling costs. Critics say it would remove a key federal safety net and cut back on already strapped programs for the the poor and elderly. The legislation faces a final procedural vote before moving to the Senate.

WASHINGTON: The Governor is expected to sign legislation establishing a state health insurance exchange as a non-profit, public private partnership with a governing board consisting of nine members.  The bipartisan legislation directs the board, in consultation with the Washington State Health Care Authority, to develop a range of recommendations for establishing/implementing the exchange using stakeholder input and recognizing the need for a private market outside of the exchange. The board’s recommendations would need to be ratified by the legislature during the 2012 legislative session.

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