Health for life

Remember that Affordable Care Act (ACA) "essential health benefit (EHB)?" 

While Disease Management Care Blog doesnt want to be reminded about it either, the topic bubbled into the health policy news cycle thanks to this sleeper bulletin recently released by HHS. Recall, despite the ACA requiring an approach based on a "typical" insurance plan covering ten categories of services, that the law set the stage for a requirement that every U.S. health insurer would have to potentially cover an expansive, complicated, expensive and controversial suite of services in each and every health insurance policy.  Any insurance plan not meeting the EHB would be excluded from the exchanges.

While the DMCB feared the unable-to-say-no amateurs in HHS would stumble their way into an unaffordable and one-size-fits-all package, it appears theyve blinked.  Thats because theyve discovered that the ACA misread things: while insurance policies typically cover a core set of services, they vary in coverage of other services.  That includes dental care, acupuncture, bariatirc surgery, hearing aids, tobacco cessation, in-vitro fertilization, certain autism services, a variety of mental health and substance use disorders and habilitative (yes, that was a new one for the DMCB too) services.

How does HHS intend to reconcile this?

"We intend to propose that EHB be defined by a benchmark plan selected by each State."  

Whoa.

In other words, there would be 50 EHBs.  As the DMCB understands it, each would be calculated using an intra-state combination of the largest small group plan, any of the largest thee state employee plans, any of the large three national FEHBP plans and the largest commercial plan.  If a state doesnt calculate the benefit, the Feds intend to use the one used by the largest small group insurance plan.  If the calculation doesnt include sufficient coverage in all the ten categories, the ultimate default is using whatever is in the states largest FEHBP plan.

Business groups and state leadership will probably find the local state-based approach a more palatable alternative, while some professional (for example) and patient advocacy (for example) may be disappointed.

Is this also some type of "mandate?"

With two prior posts under its belt ("Optics" and "Furies"), the Disease Management Care Blog continues to follow the opinionating over the constitutionality of Affordable Care Acts health insurance "mandate." The latest is this New England Journal Perspectives piece.  According to author Mr. Elhauge (who personally opposes the mandate), a federal law that uses the Commerce Clause to require persons to purchase health insurance is perfectly legal and proper at multiple levels:

Congress has repeatedly used broad interpretations of the Constitution to insert itself into the conduct of commerce, so the mandate is nothing new.  One past example is the prohibition against gender, religious or racial discrimination by private firms, while another is the ban on home grown medicinal marijuana.  Since health care is a commercial activity in the public space, the logic is that Congress can similarly require anyone who has ever received health care in the past to purchase health insurance for the future.

While prohibiting an activity (like discrimination or pot) may not be the same as requiring an activity (health insurance), readers may be interested in knowing that the first Congress not only required ship owners to buy medical insurance for merchant seamen but later required seamen to buy hospital insurance.

And what about that mortgage deduction?  If you dont buy a house, you cant take the deduction, which economically the same as a penalty for not engaging in the economic activity of home ownership.

Another favorite of mandate opponents is the argument that the Feds are on a slippery slope leading to a requirement that we all buy broccoli or General Motors cars.  The counter argument is that Medicare is a system that requires the purchase of "broccoli" at government stores.  Whats more, if we were to privatize Medicare, wouldnt that also functionally be a mandate for the purchase of private insurance?

Last but not least, if personal liberty is the underlying issue, the argument is that no one would ever force anyone to eat the broccoli.  Mandating insurance is not the same as mandating health care.

While the Governors Mansion in Pennsylvania is currently under the control of the Republicans, the Disease Management Care Blog knows the states Insurance Department is relatively apolitical. Thats why this September statement by Pennsylvania Commissioner Consedine before the U.S. House Ways and Means Subcommittee on Health is quite telling. 

In it, Mr. Consedine describes how the Keystone state is encountering difficulties implementing an health insurance exchange. As DMCB readers will recall, exchanges are a key feature of the Affordable Care Act, because theyll provide an online market that will enable individuals to obtain coverage.

According to Mr Consedine, CMS is failing to support a good law with the many regulatory details that turn a vague idea into a functioning reality. These failings include:

1. "Interim," not "final" rules on eligibility, tax credit calculations, cost sharing and the role of brokers

2. Little formal guidance on the determination of the essential health benefit.

3. Delays in issuance of regulations on how states and Uncle Sam will split or mutually indemnify the myriad costs of the exchange and the Federal Data Hub.

4. Delays in the issuance of regulations on how states can exit a federally run exchange to set up one of their own.

5. Lack of clarification of CMS impact on insurance markets operating outside the exchanges.

6. Little understanding of whos in charge of consumer protection statutes.

7. Confusion over reconciliation of multiple states insurance laws and regulations in multi-state exchanges.

8. No guidance on how to roll long-extablished and well functioning state-subsidized insurance programs into the exchanges.

9. Concern that funding of the information technology could be clawed back if Medicaid eligibility does not meet CMS criteria.

10. Little guidance on whether exchanges will need to provide consumers with a list of providers who are accepting new patients.

The concerns are also damning in the context of the the normal tug of war between the states and Washington DC. Thats because in his testimony, Mr. Consedine states he wrote to HHS weeks ago and has not received a reply.  While its not unusual for the Feds to stiff politically inconvenient inquiries, the Disease Management Care Blog is fearful that the reason why HHS seems unwilling to provide a timely reply is because it doesnt know the answers.

If Pennsylvanias experience is typical, that means the roll out of the exchanges could be significantly delayed.

You read it here first.

9/26/12 Update: Senator Hatch agrees with the DMCB