Alex Azar is facing his first big Obamacare test in his new role as Health and Human Services secretary: Will he enforce the Affordable Care Act even as some Republicans try to duck its requirements?
If Azar cracks down on Idaho for its recent bold and unprecedented move to sidestep ACA insurance regulations, he’ll send the message that the law of the land comes first — even if he privately supports efforts by Congress to repeal Obamacare. But if the new secretary shrugs off Idaho’s actions, it could embolden more GOP-led states to thumb their noses at the health-care law and let off the hook more insurers from its consumer protections.
It was unclear yesterday, however, exactly what approach Azar would take as he faced questions in a congressional hearing about how he’ll respond to Idaho, a state whose Republican governor, C.L. “Butch” Otter, announced last month that insurers can sell non-ACA-compliant plans.
Asked about the Idaho move during a House Ways and Means Committee hearing, Azar said that “there are rules and there’s a rule of law that we need to enforce.”
But Azar also didn’t indicate that he has issued warnings to the state. “I’m not aware that our opinions or views have been solicited,” he told lawmakers.
ThinkProgress's Amanda Michelle Gomez tweeted a response from Azar's new department:
HHS spokesperson just emailed me the following re Idaho: “We are continuing to monitor the situation in Idaho. HHS is committed to working with states to give them the flexibility to provide their citizens the best possible access to healthcare, within the bounds of the law.” https://t.co/swyi9aby0e— Amanda Michelle Gomez (@amanduhgomez) February 14, 2018
On Wednesday, Blue Cross of Idaho became the first insurer to take Otter up on the offer, announcing it would sell five “Freedom Blue” plans that include limits on annual medical spending and charge higher premiums to people with preexisting medical conditions — all policies that are specifically prohibited under the ACA.
Indeed, there’s little dispute among experts that Idaho is violating the text of the ACA and some of its key tenets to make insurance coverage more comprehensive. A major part of the health-care law is requiring that individual market plans cover 10 categories of “essential health benefits” and ensuring that people with preexisting conditions don’t have to pay higher monthly premiums than healthy people.
“It is, I think, a clear-cut violation of the Affordable Care Act,” Joel Ario, who directed the Office of Health Insurance Exchanges under the Obama administration, told me.
Andy Slavitt, former Centers for Medicare and Medicaid Services administrator under Obama:
This not only violates what Congress passed, but it violates the needs of American families. https://t.co/5wmUDyfp4b— Andy Slavitt (@ASlavitt) February 14, 2018
Aviva Aron-Dine, a senior fellow at the liberal Center on Budget and Policy Priorities and a former member of Obama’s administration:
Sadly it could be the new standard regardless, if the Administration’s “short-term” plans rule is as expected & seeks to let insurers sell year-long plans violating pre-ex and other protections: https://t.co/eXrJbe6Vca— Aviva Aron-Dine (@AvivaAronDine) February 14, 2018
Kaiser Family Foundation senior VP Larry Levitt:
If a state like Idaho is not enforcing the ACA's insurance protections, the federal government is obligated to step in and enforce the rules. We'll see what happens.— Larry Levitt (@larry_levitt) February 14, 2018
Idaho's impulse is understandable, since individual market premiums are quite high in some places. But, lowering premiums for healthy people means that middle-class people with pre-existing conditions will pay more.— Larry Levitt (@larry_levitt) February 14, 2018
So, what could the Centers for Medicare and Medicaid Services do to enforce the law? If the agency determines Idaho has failed substantially to enforce part of the ACA, it could wield a pretty big stick by fining the plans $100 per day for every customer, which could add up to $36,500 per year.
There are possible legal ramifications, too. Plans ducking the ACA face the risk of lawsuits from patients who buy noncompliant coverage only to later realize their plan doesn’t cover certain mandated benefits that they might need.
Given those possible risks, it could seem surprising that any state would give insurers such license. But if CMS doesn’t take a firm stance in the Idaho situation, it’s possible to imagine other Republican-led states following suit, especially those that have resisted other elements of the ACA such as its Medicaid expansion.
Expect states and insurers to be carefully watching Azar’s moves in the coming weeks as they start thinking about the marketplaces for 2019. Marketplace insurers are working on setting rates for next year, and in a few months they’ll need to start submitting plans to the administration for approval.
“I do suspect if Idaho goes forward and approves the plans and they’re actually sold — and there isn’t any consequence against them — I do think you’ll see other states take a closer look at that strategy,” Ario said.
Just look at how more than a half dozen states legalized recreational use of marijuana under the lenient Obama-era policy that kept federal authorities from enforcing a federal ban against it. A similar domino effect could occur with health plans -- once one state shows it's possible to duck the ACA, other states might try to do the same, said Nicholas Bagley, a professor at the University of Michigan Law School.
"I think Azar has got to be worried that, if Idaho presses ahead, other states will follow," Bagley told me. "Once they know the cop is off the beat, why wouldn't they?"
To justify their actions, Otter and Blue Cross have both pointed to rising insurance premiums on Idaho’s individual market as reasons they’re ignoring parts of the ACA. Idaho officials said the aim is to allow these cheaper plans to be sold off the state’s marketplace to attract younger and healthier consumers.
Yesterday, Idaho Blue Cross CEO Charlene Maher said Idaho’s marketplace “isn’t affordable” for middle-class families. “Our new state-based plans are a response to Gov. Otter’s executive order, which begins to solve the issues that have kept middle-class Idahoans from buying health insurance,” she said in a statement.
Idaho’s move is also raising the ire of many health-care advocates and stakeholders who had bristled at Republican efforts in Congress to repeal some of the ACA’s insurance requirements but then breathed easier when those efforts dramatically failed. Now, they have to worry about whether the Trump administration will enforce a law that remains on the books.
A group of 15 medical associations wrote to Azar yesterday, urging him to ensure plans would continue providing the full range of benefits required under the ACA and maintain its consumer protections.
“We urge you to make clear that Idaho cannot authorize the issuance of health insurance coverage that violates federal law, and that any insurer that issues such plans risks enforcement action and serious penalties,” says the letter, signed by the Cancer Action Network, the American Heart Association and the American Lung Association, among others.
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— The latest on the Florida shooting: At least 17 people were killed when a 19-year-old gunman opened fire Wednesday on the South Florida high school from which he was expelled. Nikolas Cruz had been kicked out for “disciplinary reasons,” and was captured following a manhunt in the aftermath of the shooting, The Post’s Moriah Balingit, William Wan, Mark Berman and Lori Rozsa report. Cruz was booked into Broward County Jail early Thursday and charged with 17 counts of premeditated murder, per the Associated Press. Officials said another 14 people have been treated at hospitals, per the AP.
The terror unfolded at Marjory Stoneman Douglas High, a 3,000-student school named after an icon of the South Florida environmental movement and located in an affluent suburb northwest of Fort Lauderdale. It was the 18th school shooting in the nation just 45 days into the year, according to pro-gun control group Everytown for Gun Safety. President Trump has tweeted three times about the shooting, expressing his “prayers and condolences” to victims’ families. “So many signs that the Florida shooter was mentally disturbed, even expelled from school for bad and erratic behavior,” the president tweeted Thursday morning. “Neighbors and classmates knew he was a big problem. Must always report such instances to authorities, again and again!”
Sen. Chris Murphy (D-Conn.) took to the Senate floor on Wednesday to call out Congress for not doing enough to address gun violence. "This epidemic of mass slaughter, this scourge of school shooting after school shooting," Murphy said. “It only happens here not because of coincidence, not because of bad luck, but as a consequence of our inaction. We are responsible for a level of mass atrocity that happens in this country with zero parallel anywhere else."
AHH: Prescription drug spending is projected to grow faster than any other major medical good or service over the next decade, The Post's Carolyn Y. Johnson reports. The analysis out yesterday from the Centers for Medicare and Medicaid Services, published in the journal Health Affairs, estimates that by 2026, national health spending will climb to $5.7 trillion, or nearly a fifth of the economy.
While data was released in December showing a 1.3 percent increase in spending on prescription drugs in 2016 — a small fraction of the increases in previous years -- the new analysis suggests the low rate of increase will not last. Future spending is forecast to grow at 6.3 percent per year, on average, between 2017 and 2026, according to the CMS analysis.
"CMS actuaries said the secret rebates that manufacturers negotiate with health plans have helped temper the growth of prescription drug prices and spending in recent years but will not contribute as much in the future," Carolyn writes. "The new data suggests that while rebates have helped to rein in prescription drug spending, the effect will attenuate over the next decade. The spending growth will also be driven by a shift toward specialty drugs, which cost more and often do not carry the same generous rebates."
OOF: This flu season has gotten so bad -- partly because the vaccine is less effective than in previous years -- that patients seeking care have surged to levels not reported since 2009's swine flu peak. My colleagues Darla Cameron and Dan Keating have put together an interesting graphic showing flu-related hospitalizations by year, illustrating just how intense this year's flu season is.
It's worth noting President Trump hasn't said anything about the flu. And it's not as though he doesn't ever address epidemics: Since his inauguration, Trump has called out three 'epidemics' on his Twitter feed: An “epidemic” of human trafficking; an epidemic of crime in Chicago; and, of course, the opioid epidemic, The Post's Philip Bump notes. Trump hasn’t promoted the flu vaccine, either through his personal Twitter account, the White House account or the @POTUS account -- although former President Obama didn’t do so from his personal account as president, either, despite flu epidemics in 2013 and 2015.
OUCH: Anti-poverty advocates say the social safety net cuts and restructuring proposed in Trump's budget — substituting “food boxes” for food stamps and introducing work requirements for subsidized housing — could make life more precarious for 90 million low-income Americans who rely on at least one of those programs, potentially pushing millions off the programs and reducing benefits for the ones who are left, The Post's Caitlin Dewey and Tracy Jan report.
The budget proposal, released Monday, would slash nearly half a trillion dollars over the next 10 years from the three main pillars of the social safety net: Medicaid, federal housing assistance and the Supplemental Nutrition Assistance Program, better known as food stamps. The proposal is unlikely to become law, but it reflects the priorities of Trump and his administration, who say dramatically curtailing spending on these programs can shrink the deficit and focus benefits on the truly needy.
But anti-poverty advocates charge the cuts put vulnerable low-income families at risk of hunger or homelessness — particularly if they, like an estimated 5.7 million Americans, depend on all three of the targeted programs, Caitlin and Tracy write. “Is that making America great — by making it unbearable for people who are U.S. citizens to even live here?” asked Daisy Franklin, a 60-year-old grandmother in Norwalk, Conn., whose household of four relies upon Medicaid, a federal housing voucher and more than $300 a month in food stamps. “It sounds like Trump is trying to turn the clock back.”
--Today the House is expected to approve a bill that removes incentives for business owners to comply with the Americans With Disabilities Act mandating equal access to public accommodations, The Post's Mike DeBonis reports. Advocates for the disabled fear the measure would weaken the 27-year-old law, while proponents contend the legislation would stem a tide of “drive-by lawsuits” brought by predatory lawyers seeking to collect payouts from noncompliant business owners without actually improving access for those with disabilities.
The ADA Education and Reform Act which is supported by House GOP leaders and a handful of Democrats, would require those who sue businesses in federal court to first deliver a specific written notice to that business detailing the illegal barrier to access, and then give that business 60 days to come up with a plan to address the complaints and an additional 120 days to take action. "That, the bill’s supporters say, would keep small-business owners from being targeted for legal shakedowns. But the bill’s opponents say it would in effect gut the ADA by removing any incentives businesses have to comply with the law before a complaint is filed," Mike writes.
More than 200 disability-rights groups have signed a letter opposing the bill, and tensions over the bill have run high at times. Activists interrupted a House Rules Committee meeting on Tuesday chanting “Don’t take our rights away. Hands off the ADA!” Capitol Police arrested 10 people after they refused an order to leave the premises. Five were in wheelchairs, Mike reports.
--Surgeon General Jerome Adams says he would “politely disagree” that efforts to combat opioid abuse should move away from law enforcement and toward addiction treatment. “We have to help law enforcement have a public health-informed approach to the way they tackle addiction, but we will never be able to remove law enforcement from the equation,” Adams said yesterday at an event hosted by The Hill. “We’ve got to figure out ways to better partner with them.”
Adams also said connecting people with support services, such as food and housing, should be a key part of the effort to fight the opioid epidemic. But he stressed the money Congress recently allocated should be spent in ways that produce results.
“That’s what I want Congress to know, that’s what I want policymakers to know — we’re not throwing good money after bad; we’re actually getting a return on investment by wrapping people with the support services they need to be successful in recovery," Adams said.
--A few more good reads from The Post and beyond:
- The USC-Brookings Schaeffer Initiative for Health Policy holds an event on patient cost sharing for prescription drugs on Friday.
Sen. Chris Murphy (D-Conn.) told his fellow lawmakers Wednesday's shooting at a South Florida high school is the “consequence of our inaction:"
Former FBI agent Philip Mudd broke down while talking about Wednesday's school shooting on CNN:
The White House's claims surrounding the domestic violence allegations against Rob Porter were challenged by FBI Director Christopher A. Wray: