Implementing Health Reform. The Center for the Study of Services, doing business as Consumer Checkbook, is a nonprofit business that has for three decades provided consumers with price and quality rating information on health and services providers in a number of metropolitan areas, as well as providing a shopping guide to federal employees health benefit plans.
In 2013 Consumer Checkbook submitted a Freedom of Information Act (FOIA) request to the Department of Health and Human Services (HHS) asking for federally facilitated marketplace (FFM) plan data that would allow it to create a similar tool for comparing marketplace plans. When HHS failed to provide the requested information, Consumer Checkbook filed a lawsuit to compel its release. HHS finally provided the data for 2014 in late summer 2014. Consumer Checkbook again requested plan data for 2015, which was made available only on November 14, 2014, the day before open enrollment began.
Consumer Checkbook requested plan data yet again for 2016. It also moved for summary judgment in its lawsuit to establish its ongoing right to this information. HHS responded that the information was exempt from FOIA disclosure under a disclosure exception that covers confidential commercial information obtained from third parties.
On July 1, 2015, Judge Gladys Kessler of the District of Columbia federal district court denied summary judgment to both parties, holding that Consumer Checkbook had not proven that it was entitled to the information under FOIA but that the government had not proven that the information was exempt from disclosure.
Subsequently the parties agreed that HHS would provide the requested information to Consumer Checkbook by October 13, 2015. HHS announced that it will publicly release its 2016 Rate and Benefit Public Use File on October 23, 2015 and update the information provided Consumer Checkbook on that date.
Although this litigation continues, this agreement sets a useful precedent for private companies that seek access to qualified health plan rate and benefit information to allow them to create consumer shopping tools in time for the beginning of open enrollment. For 2016 open enrollment begins on November 1, 2015.
Challenge To Application Of Health Insurance Provider Fee
In other litigation, Texas, Kansas, and Louisiana filed a lawsuit on October 22 claiming that the requirements that Medicaid and CHIP managed care organizations pay the Affordable Care Act (ACA) Health Insurance Provider Fee, and that the states cover their costs of doing so as a condition of receiving federal Medicaid funds, are unconstitutional and illegal.
The complaint argues that the states were not on "clear notice" of the requirement as arguably required under the Constitution's spending clause; that the role of the private Actuarial Standards Board in determining state liability for covering the cost is an unconstitutional delegation of authority to a private entity and violates the Administrative Procedures Act (APA); that the requirement was promulgated without following APA procedural requirements; and that the requirement unconstitutionally coerces and taxes sovereign states. The complaint asks that the requirements be enjoined and that the states be refunded the amounts they have already paid for the provider fees.
The health insurance provider fee is one of several fees imposed by the ACA to help finance the benefits of the law. It was supposed to collect $8 billion in 2014 increasing to $14.3 billion in 2018. The ACA excludes from the fee non-profit managed care organizations that receive more than 80 percent of their revenues from government programs serving Medicaid or Medicare populations, but the fee applies in full to for-profit managed care organizations.
The Actuarial Standards Board has ruled that managed care organizations must recover the fee from states as part of their capitation rate to be considered actuarially sound, which is in turn a requirement for the organizations to participate in Medicaid or CHIP. States cannot collect federal matching funds for paying Medicaid managed care providers that are not eligible for program participation.
The standards of practice of the Actuarial Standards Board are widely relied on by government and private entities. Indeed, the federal and state governments rely on private standards for many purposes. The states claim that they must pay substantial amounts ($85 million for Texas, $32 million for Louisiana, and $33 million of Kansas in 2013) to cover the fee. But the states also pay substantial amounts to cover other federal taxes paid by Medicaid managed care organizations, like payroll or income taxes.
The states filed the case in the Wichita Falls division of the Northern District of Texas, thus drawing the judge assigned to that division, Judge Reed O'Connor, a George W. Bush appointee who has demonstrated an openness to conservative challenges to federal rules in the past. It will no doubt be some time before we know how he rules on this case and how his ruling stands up on appeal.
from Health Affairs Blog http://ift.tt/1M8TMTc
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