Commentary

The Supreme Court Speaks, U.S. Health Reform Continues

Daniel Redwood, DC

 

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Topics in Integrative Health Care 2012, Vol. 3(3)   ID: 3.3002



Published on
September 26, 2012
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The United States Supreme Court has upheld the Patient Protection and Affordable Care Act as constitutional. While the Court limited the power of the federal government to require state governments to expand Medicaid coverage to include many more low-income Americans, the rest of the Affordable Care Act stands as the law of the land. Unless repealed, its provisions will be implemented. For all Americans, it is now very important to know what changes this involves, so that we may further educate ourselves as to their likely effects, as well as the likely effects of eliminating them by repeal.



Chiropractic and CAM: Breakthrough Provider Nondiscrimination Rule



Since most of our readers have a strong interest in chiropractic and complementary and alternative medicine (CAM), let’s begin with the provisions directly related to those fields. First and foremost, the Affordable Care Act’s Section 2706 enacts for the first time a nationwide provider nondiscrimination policy, prohibiting insurance companies from denying coverage based on provider type for services provided by licensed health care practitioners. For example, this policy appears to indicate that if spinal manipulation or acupuncture (or any other service within a practitioner’s scope of practice) is covered when performed by a medical or osteopathic physician, insurers cannot have a policy denying such coverage when the service is performed by a chiropractor or acupuncturist. In the past, such discriminatory policies have had the effect of routing patients away from DCs, LAcs and other non-MD/DO practitioners.

The nondiscrimination rule is a landmark step forward and marks the first time that legislation applies such a policy across the entire nation. However, it does not bar all forms of discrimination. Importantly, insurers are not barred from paying some types of practitioners more than others for the same services. Chiropractors and a variety of other non-MD/DO practitioners sought such a ban but did not achieve it in this legislation. Success on that front will have to wait until later.

The full ramifications of Section 2706 will become clearer over time, as uncertainties are resolved through state and/or federal regulatory actions or litigation. For now, it is seen by chiropractic and CAM leaders and attorneys as the most significant positive piece of federal legislation in many years. It should be noted that not all effects will necessarily be positive, as the law requires that employers with over 50 employees (which could include some owners of multiple clinics) provide health coverage, and those who did not previously provide such coverage will to face higher costs. It is also possible that employers who previously did provide coverage may face increased costs because the health reform law strongly discourages plans with weak coverage, and/or high deductibles and co-pays.

The American Medical Association House of Delegates approved a resolution at its June 2012 national meeting that calls for the repeal of the nondiscrimination policy. While vigilance on the part of chiropractic and CAM organizations remains necessary, this AMA repeal effort faces a steep uphill climb unless the November 2012 election brings a president, House, and Senate that repeals the entire Affordable Care Act. Senate Republican Leader Mitch McConnell and House Speaker John Boehner have pledged to seek full repeal in early 2013.
 

Other Provisions of Interest for Chiropractic and CAM



Two other provisions in the new law are noteworthy for their specific mention of chiropractors and CAM providers:

1.  National Health Care Workforce Commission

The Affordable Care Act establishes a National Health Care Workforce Commission to examine current and projected needs in the health care workforce and to make recommendations based on their findings. The law specifically defines doctors of chiropractic, licensed complementary and alternative medicine providers, and integrative health practitioners as part of the health care workforce, and includes them in the definition of health professionals. This provides a basis for including these practitioners in future health care workforce policy planning strategies. However, two years after the president appointed its members, the Commission has yet to hold its first meeting, as the House majority has successfully blocked the funding required for it to function.

2.  Community Health Teams


Doctors of chiropractic and licensed CAM practitioners are specifically included as potential members of interdisciplinary community health teams to support the “patient-centered medical home” (PCMH). Because The Affordable Care Act states that these teams “may” rather than “shall” include practitioners of chiropractic and CAM, such inclusion is not required. Nonetheless, the fact that chiropractic and CAM are mentioned at all (in a list that also includes “medical specialists, nurses, pharmacists, nutritionists, dieticians, social workers, [and] behavioral and mental health providers”) provides DCs and CAM practitioners with a starting point in efforts to achieve inclusion in local PCMH entities now in the formative stages. The best source for information on the PCMH concept as it relates to chiropractic is the white paper by the Foundation for Chiropractic Progress. Click here to access this report. Regardless of the ultimate fate of the Affordable Care Act, efforts to create new care delivery models such as the patient centered medical home and accountable care organizations will continue.
 

Comparative Effectiveness Research



Comparative effectiveness research—in which different treatment methods are compared in head-to-head trials to determine their relative effectiveness—is critical to the development of effective, high-quality health care. Chiropractors and CAM practitioners are among those who have long sought a level playing field in research, where distinctions between methods considered conventional, complementary, alternative, or integrative disappear and the only distinction that matters is whether a particular approach is effective or ineffective at achieving desired health outcomes and avoiding adverse side effects.

Section 6301 of Affordable Care Act establishes the Patient Centered Outcomes Research Institute (PCORI) as the major funder of comparative effectiveness research, with a dedicated funding stream through Medicare and private insurance fees. Funding levels will be substantial, reaching $650 million USD annually starting in the 2014 fiscal year.

The first round of PCORI funding was announced in April 2012. Rather than diving directly into trials comparing competing methods, PCORI began by funding 50 pilot projects “to support the identification of methodologies that can be used to advance patient-centered outcomes research as well as identify gaps where methodological research needs further development.” In other words, in keeping with its “patient centered” mission, PCORI is pursuing a long-term strategy that initially seeks to develop patient-centered research methods, essentially seeking answers to the question, “How can the health care system most effectively determine how to serve its diverse patient population in ways that involve those patients as fully as possible, meeting their needs while respecting their preferences?” The list of PCORI’s first 50 projects is here.


Broader Issues in Health Reform



Expansion of Coverage, Mandate to Purchase Insurance

As passed by Congress and signed by the president, the Affordable Care Act expands coverage to what the nonpartisan Congressional Budget Office estimates will be over 30 million currently uninsured Americans. The Supreme Court’s decision on Medicaid expansion might decrease this number, perhaps by as many as 8 million (depending on which, if any, states refuse to participate in the Medicaid expansion), but unless the law’s key provisions are repealed or otherwise rendered dysfunctional, at least 20 million previously uninsured Americans will have coverage starting in January 2014.

Nearly all Americans will be required to purchase an insurance policy or pay a penalty/tax. Individuals for whom purchase of a new insurance plan is unaffordable will receive subsidies from the federal government to help them pay for their insurance policies, on a sliding scale. The Secretary of Health and Human Services also has the power to grant waivers based on economic hardship to those who cannot find an affordable policy. In Massachusetts, the only state with an individual mandate, only 1% of residents now pay the penalty rather than purchase insurance.

Patient Protections

The Affordable Care Act has hundreds of moving parts, only a few of which have received widespread media attention. Some key provisions are already in effect and virtually all are scheduled to be up and running by January 2014. Here are links for a somewhat simplified list of major provisions from the Department of Health and Human Services and a more technical version from the Kaiser Family Foundation, a “non-partisan source of facts, information, and analysis for policymakers, the media, the health care community, and the public.”

Among the rules already in effect are that insurance companies are banned from denying coverage to children due to pre-existing conditions, from rescinding (canceling) coverage when people become ill, and from placing a lifetime dollar limit on coverage. Also, the “donut hole” where seniors have no Medicare coverage for prescription drugs has begun a several year phase-out, young adults may remain on their parents’ insurance policies through age 26, and insurance companies must spend at least 80 or 85% of premium dollars (depending on the type of policy) on health services rather than administration and profits. Insurers that spend less than this figure on actual care are required by the Affordable Care Act to refund the difference to subscribers. The first rebate checks will be sent out in August 2012.

Starting in 2014, there will be complete ban on exclusion from coverage due to pre-existing conditions for adults as well as children. Also prohibited will be annual coverage limits and gender discrimination (women currently can be charged higher rates than men for the same coverage). In addition, insurers are required to guarantee issue and renewability of policies and may allow rating variation based only on age (limited to 3 to 1 ratio), premium rating area, family composition, and tobacco use (limited to 1.5. to 1 ratio). In addition, the provider nondiscrimination policy begins in 2014. January 2014 will also mark the opening of state insurance exchanges, through which private insurance plans that meet federal minimum standards may be purchased by people who have no employer-based insurance and do not qualify for Medicare or Medicaid.
 
The federal government has provided startup funding for states to set up health insurance exchanges, but some states have refused to develop an exchange as part of a broader non-cooperation strategy. In cases where such refusal continues, the Affordable Care Act empowers the federal government to set up an exchange for the people of those states. Regarding the essential benefits package needed to qualify for placing an insurance policy on the exchange, the Obama Administration’s Secretary of Health and Human Services, former Kansas governor and insurance commissioner Kathleen Sebelius, has allowed states that set up exchanges to make their own decisions, choosing among the levels of coverage in benefit packages offered in existing insurance policies. The benchmark the states will be required to use could be one of the three largest plans covering small businesses, state employees or federal employees in the state or the largest health maintenance organization serving commercial customers.

The battle on what is to be included in the essential benefits package has thus shifted to the state level. With Sebelius’ decision, there will not be a single across-the-nation essential benefits package. For chiropractors, a significant positive aspect of this policy is that most of these existing plans have chiropractic coverage. A negative aspect is that in some cases levels of coverage are relatively limited. Overall, however, expansion of the number of insured Americans means that more Americans who need chiropractic care will have coverage to help pay for that care.

Medicaid

As passed by Congress and signed by President Obama, the health reform law substantially expands Medicaid, a means-tested program that is jointly funded by federal and state governments and managed by the states. Medicaid primarily provides health insurance coverage for the poorest Americans, but it is also the funding source for most of the nation’s nursing home care. The goal of the expansion is to cover under Medicaid everyone whose earnings are at or below 133% of the poverty line (approximately $14,000 for an individual and $30,000 for a family of four).  Currently, states differ drastically in their eligibility requirements; some states only cover those below 65% of the poverty line while others already meet the 133% level.

Many of the states with the most meager health care coverage for the poor also have the highest levels of uninsured individuals. Many but not all of the states with the most uninsured are in the Deep South: as of March 2012, the Gallup organization reports that the top three are Texas, with 27.6% uninsured; Mississippi, with 23.5%; and Florida with 22.9%. On the other end of the scale, Gallup finds that Massachusetts (the only state with an individual mandate requiring residents to purchase insurance) has 4.9% uninsured, with 98% of children insured. In all other developed nations, 100% of the population has health insurance.

In the one part of the Supreme Court decision that did not affirm the Affordable Care Act as passed by Congress, the Court ruled that states cannot be required to accept the Medicaid expansion in the health reform law. States may choose to opt in or out. Some governors have already indicated opposition to accepting the federal funds allocated for this purpose. (Under the Affordable Care Act, the federal government will cover 100% of the expanded Medicaid costs from 2014-2016, gradually decreasing to 90% in 2020 and beyond).

In Florida, where Governor Rick Scott has vowed to reject Medicaid expansion, this opt-out would mean that a 1 million people who would have been newly insured under Medicaid starting in 2014, will remain uninsured. In Texas, the number would approach 2 million. In California (by far the state with the highest population), there are 7 million uninsured, but California will accept the Medicaid expansion and along with 4 other states (Connecticut, Minnesota, New Jersey and Washington) received a waiver to begin Medicaid expansion early.

For now, many Republican governors and legislators have vowed to reject the Medicaid expansion. No one knows what these states will do when the time for a final decision on accepting or rejecting Medicaid expansion arrives in January 2014. Much depends on the outcome of the 2012 elections. Adding to the complexity of the political calculus, refusing to accept Medicaid expansion will also mean that hospitals have to continue to write off all care to those who would have been newly insured under Medicaid, thus significantly impacting their bottom lines as well as the budgets of state governments which offer aid to those hospitals to partially make up for such uncompensated care.

Some Changes Will Continue With or Without the Health Reform Law



Several large insurance companies announced prior to the Supreme Court decision that, however the Court ruled, they would continue to honor provisions of the Affordable Care Act related to coverage of preventive health care services, coverage of dependents up to age 26, lifetime policy limits, rescissions and appeals. This may mean that they would also continue to do so if the law was repealed. Notably absent from the provisions the insurers pledged to continue were the bans on exclusion for pre-existing conditions and gender-based premium rates.

In closing, I would ask each of our American readers … please familiarize yourself with what is in the law, so that you will be able to evaluate all claims — pro or con — based on facts rather than distortions. Here, again, are a somewhat simplified list of major provisions from the Department of Health and Human Services and a more technical version from the Kaiser Family Foundation.
 

A previous version of this commentary was published in Health Insights Today, a publication of Cleveland Chiropractic College-Kansas City, and is reprinted with permission.

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