The language of the Alexander/Murray bill is now available. Our post of yesterday, October 17 provides an on the whole accurate description and analysis of the bill.
One late addition deserves further discussion, however. As noted in an earlier post, many states have already required or allowed their insurers to increase premiums to account for the shortfalls the insurers will experience for the CSR payment cut off. Rather than require the insurers to refile their rates again, delaying the 2018 open enrollment period, the proposed language would leave the increased rates in place but require insurers to rebate overpayments to their enrollees and to the federal government as appropriate. These rebates could be delivered monthly or in one-time payments; they could be paid after the year, through the ACA’s medical loss ratio rebate provisions, or in some other way.
The rebates would be accounted for in determining premium tax credits and in applying the ACA’s medical loss ratio and risk adjustment program requirements. Consumers would be given notice as to how the rebates would work.
These provisions were the last of the bill to be worked out in the bill and need further thought. If a rebate program can be designed that will hold consumers and the government harmless and will allow open enrolment to proceed on November 1, 2017, it might be the best solution that can be achieved at this point. It would have been far preferable for Congress to have appropriated the CSR funding months ago, if it thought an appropriation was necessary beyond that found in the ACA, or for the Trump administration to have promised payment of the CSRs unless and until there was a final decision from the highest appellate court that their payment was illegal. Congress and the Trump administration have dug a deep hole to now climb out of.
CMS Issues Technical Guidance For Developing QHP Quality Ratings
The Affordable Care Act requires HHS to issue a quality rating for each qualified health plan (QHP) offered through an exchange, as well as an enrollee satisfaction survey that will assess enrollee satisfaction with each QHP issued through an exchange with more than 500 enrollees in the prior year. In October of 2017, CMS issued its Quality Rating System and Qualified Health Plan Enrollee Experience Survey 2018 Technical Guidance, which will apply to developing ratings during 2018 for the 2019 open enrollment period
The 2018 technical guidance is quite similar to the 2017 system. Changes include:
- Insurers in Medicaid expansion states in which the expansion population is covered through the exchange (Arkansas) are required to include their QHP Medicaid enrollees in their QRS data submissions;
- CMS is adding an immunization for adolescents measure to its score and rating calculation but dropping two other measures dealing with aspirin use and diabetes resource use;
- To arrive at an overall rating, CMS will assign a weighting of two thirds to the clinical quality management summary indicator, and a one sixth rating to each of the enrollee experience and the plan efficiency, affordability, and management summary indicators;
- CMS intends to display a global rating and three summary ratings on the HealthCare.gov website for all QHPs for 2019; for 2017 and 2018 they were only displayed on a pilot basis in Virginia and Wisconsin; and
- QHP insurers and web-brokers will be able to display AHP quality ratings for all HealthCare.gov QHPs for 2019 with appropriate disclaimers.
Slides Outline Agent And Broker Marketplace Enrollment Pathways
On October 16, 2017, CMS released at its REGTAP.info website (registration required) a series of slides from an October 11, 2017 program for agents and brokers on preparing for the 2018 open enrollment period. The extensive set of slides reinforces the impression that, while the administration is cutting funding for navigators and advertising, it is continuing to reach out to agents and brokers for 2018.
The slides contain perhaps the clearest explanation of the three enrollment pathways available to agents and brokers. The first is the “side-by-side” approach, where the consumer creates an account and the agent or broker sits down with the consumer to help the consumer complete a marketplace application. The second is the “double redirect” direct enrollment pathway, where the agent or broker begins the enrollment process on the website of a web broker or insurer, is directed to HealthCare.gov for an eligibility determination, and then returns to the web-broker or insurer webpage for enrollment. In the third “direct enrollment proxy” pathway, new for 2018, simple enrollments can be completed entirely on an insurer or web broker’s webpage. CMS expects about fifteen entities to be approved for direct proxy enrollment for 2018.
The slides also address agent and broker compensation. An insurer must pay the same compensation for qualified health plans offered through the Marketplace as it does for similar health plans offered in the state but outside the Marketplace. The law also prohibits insurers from structuring agent and broker compensation arrangements to discourage marketing to and enrolling consumers with significant health needs (for example, paying lower commission for higher metal-level plans—platinum and gold—which are associated with higher utilization).
Finally, the slides offer an extensive list of resources available to agents and brokers, including a direct agent and broker partner telephone line.
California Federal Judge Allows Gender Identity Discrimination Claim To Go Forward
On September 27, 2017, Judge Barry Ted Moskowitz of the United States District Court for the Southern District of California denied a motion to dismiss in Prescott v. Rady Children’s Hospital San Diego (RCHSD). Katherine Prescott sued RCHSD on behalf of herself and her deceased minor son Kyler, who had committed suicide after being treated by RCHSD for gender dysphoria. RCHSD, which had allegedly held itself out as competent to treat gender dysphoria, had repeatedly refused to identify Kyler as a boy, and had referred to him as she. It had also blocked Ms. Prescott’s attempts to get RCHSD to treat Kyler as a boy. RCHSD’s treatment of Kyler allegedly traumatized him further, and upon discharge he committed suicide.
Ms. Prescott sued under a number of federal and state law claims, one of which was based on section 1557, the Affordable Care Act’s discrimination prohibition. Section 1557 prohibits gender discrimination. RCHSD moved to dismiss, claiming that the 1557 regulations, which prohibit gender identity discrimination were not in effect when the conduct occurred. RCHSD also requested a stay in light of a nationwide injunction entered by a Texas court enjoining the enforcement of the Section 1557 regulation prohibiting gender identity discrimination.
Judge Moskowitz denied both the motion to dismiss and the stay order, stating that his order was based not on the section 1557 regulation but on section 1557 itself, and on Title IX, which it incorporates. He concluded that Section 1557 prohibits discrimination not just on biological differences but also on “failure to conform to socially-constructed gender expectations.” The Ninth Circuit, in which California is located, as well as other circuits, have specifically interpreted the law to prohibit discrimination against transgender individuals.
The court held that Ms. Prescott could not sue for injunctive and declaratory relief, since the RCHSD’s future conduct would not affect her, but could, under federal common law, sue for damages for pain and suffering for emotional distress for the treatment of her son. The court also reviewed several California state statutory claims, allowing some of them and denying others.
HHS is currently reviewing its section 1557 regulations in light of the Texas court decision. The Prescott decision, however, strengthens the argument that HHS got it right in the first place in deciding that Section 1557 prohibits gender identity discrimination.
from Health Affairs BlogHealth Affairs Blog http://ift.tt/2zApvPw
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