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The Health 202: Trump health officials rewrite big Obamacare rules

Analysis by
Reporter
April 10, 2018 at 9:04 a.m. EDT

with Paulina Firozi

THE PROGNOSIS

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The Trump administration is trying its darndest to rewrite Obamacare since Congress has largely failed to erase it. Officials yesterday took their biggest steps yet to roll back the health-care law’s regulations, showing they’re intent on dampening the law's effects wherever possible.

States will get much more wiggle room in determining whether plans are generous enough to meet Affordable Care Act standards. Some insurers could be allowed to spend more on overhead. And more Americans may duck the law’s individual mandate to buy coverage. That's all according to a massive, final notice the Centers for Medicare and Medicaid Services issued late Monday afternoon.

“Ultimately the law needs congressional action to repeal, but until the law changes we won’t stand idly by as Americans suffer,” CMS Administrator Seema Verma told reporters on a phone call.

The latest move can be seen as part of the administration’s strategy of shrinking the ACA as much as possible while remaining within its legal boundaries. We’ve seen several efforts by President Trump and Health and Human Services officials to ease what they view as egregious insurer regulations that are boosting premiums, including an expansion of alternative health plans not subject to the same ACA rules.

The CMS rule contains a final kick out the door to the law’s individual mandate. Congress repealed its penalty in December’s tax overhaul but it stays in effect through the end of this year. Now the new rule expands the list of reasons people may be excused from buying coverage. (The Health 202 first reported in January that the administration was considering additional exemptions.)

Americans living in counties with only one or no insurers can apply for a “hardship exemption” from being obtaining insurance. That could amount to a hefty crowd, since about one in four ACA enrollees in 2018 had access to just one marketplace insurer.

“The fact that the scramble to find issuers has become a yearly tradition is an example of the failure of the Affordable Care Act, and we don’t think Americans should be punished because they don’t have choices,” Verma said.

Consumers can also avoid  the mandate if the only plans available to them cover abortion services, a nod to antiabortion conservatives who have long protested that federally subsidized marketplace plans are allowed to cover abortions on their own dime.

As for the sweeping new coverage rules, they’ll apply starting in 2019 to the individual insurance plans being sold on Healthcare.gov and state-run marketplaces, where about 10 million people buy coverage. CMS is seeking a whole bucket of wonky changes, but a few of the bigger ones could significantly affect the benefits consumers are guaranteed when they shop for a marketplace plan.

For example, consider the ACA’s “essential health benefits” — 10 categories of care that insurers must cover to ensure customers get access to a full range of benefits. The EHBs were a major flash point in the repeal-and-replace fights on Capitol Hill; Republicans said they hiked premiums while Democrats said EHBs protected consumers.

Under the old rules, states had to base the 10 categories on a single plan sold within their borders. Under the new rules, states won't be constrained to such a limited, fixed menu. Instead, they can select a la carte from among various plans, including those sold in other states. For example, Ohio could choose the maternity care standards from one benchmark plan and the mental-health services from another. Wisconsin could choose the benchmark plan from North Dakota or New Jersey or Virginia.

S&P Global senior reporter Donna Young: 

There’s another big tweak in store for insurer regulations. While the health-care law requires most insurers to spend no more than 20 percent of premiums they collect on overhead, the new rule makes it easier for states to request a higher ratio for insurers if they can show the change would help stabilize premiums.

Watch for Trump and Republicans to sell these changes as consumer-friendly. They could help insurers tweak premiums downward by selling leaner plans that cover fewer benefits. “This will give states greater ability to ensure insurers can offer Americans more choices,” Verma said.

But these changes must be weighed against other revisions to the ACA — some initiated by Congress and some initiated by the administration — that could push premiums in the opposite direction.

Repealing the individual mandate will result in premiums about 10 percent more expensive, the Congressional Budget Office has projected. And Congress’s failure to fund extra Obamacare payments to insurers, through two channels known as cost-sharing reductions and reinsurance, would push “silver plan” premiums 25 percent higher by 2020, per the CBO.

So even if the administration is right, and easing Obamacare rules does put downward pressure on premiums, it probably won’t be enough to counteract the upward pressure on premiums resulting from other GOP-led actions and the very structure of the ACA, which President Obama and Democrats passed  in 2010.

“Congress funding a reinsurance program would likely have a much greater effect on the premiums than the changes in this particular rule,” said Elizabeth Carpenter, senior vice president at the consulting firm Avalere.

Kaiser Family Foundation senior VP: 

Former acting CMS administrator Andy Slavitt:

AHH, OOF and OUCH

AHH: Kaiser Permanente announced yesterday it will begin studying gun violence — a long-ignored issue because of political pressures surrounding firearms — by investing $2 million in research that will involve doctors and other professionals across its hospitals and centers nationwide, The Post's William Wan reports. Officials at the giant health system said they hope the move will encourage other systems to wade into this field of research, which has lacked funding and data for more than two decades since Congress banned the federal government from funding gun violence research if it's used to promote gun-control measures.

“The problem now is we really don’t have evidence to know what’s effective and what works” to prevent gun-related injury, said David Grossman, a doctor and senior researcher who will help lead the new task force.

Kaiser Permanente said it decided to jump start its effort because of the huge effect of gun violence on its patients. Between 2016 and 2017, its doctors treated more than 11,000 gunshot wounds. "The announcement coincides with a resurgence of gun-control activism — led by the student survivors of the February mass shooting in Parkland, Fla. — as well as with new actions by retailers to limit sales of military-style rifles and high-capacity guns and increased research interest from private foundations and state governments," William writes.

OOF: The FDA yesterday ordered a first-of-its-kind restriction on the sale of Essure, a controversial contraceptive device. The agency said manufacturer Bayer will be allowed to sell the device only to health-care providers and facilities who inform patients in advance about the risks of implanting it. Essure is a permanent birth control device.

“Bayer is facing a raft of lawsuits from patients who say they have experienced complications related to the product, including perforation of the uterus or fallopian tubes, persistent pain and allergic reactions,” The Post's Laurie McGinley writes. “Some women have also reported headache, fatigue, weight loss and depression, but whether those symptoms are linked to Essure ‘is unknown.'"

Under the new order, the FDA said providers must go over a brochure of Essure’s risks with patients. The patient must be given a chance to sign the document, which the physician implanting the device will also be required to sign. FDA said Bayer "will be responsible for implementing the restrictions immediately and for ensuring that providers comply," Laurie writes. "And the agency said it will take appropriate action against Bayer, including imposing criminal and civil penalties, if the company does not follow through."

OUCH: Olympic athletes who were abused by former USA Gymnastics team doctor Larry Nassar are supporting legislation proposed in California requiring doctors to tell patients if they're on probation for sexual misconduct or other misdeeds, the AP reports.

“Every effort must be made to make sure patients have every piece of information that is vital to their health and safety,” gymnast Jordyn Wieber, who won a gold medal at the 2012 Olympics, told reporters at the state's capitol building yesterday. Wieber was joined by 2000 Olympic bronze medalist Jamie Dantzscher and other female athletes who say they have been sexually abused by doctors.

Under the measure from Democratic state Sen. Jerry Hill, doctors would have to tell patients about their probation status and the basic details of its terms, the AP writes. The legislation, which has failed twice before, is opposed by the California Medical Association. “This is another unfortunate attempt by Senator Hill to score political points and collect headlines through unscrupulous attacks on the medical profession,” the group's President Theodore Mazer said in a statement. 

HEALTH ON THE HILL

— Sen. Tammy Duckworth (D-Ill.) has given birth to a baby girl, Maile Pearl Bowlsbey, the first time a sitting senator has delivered a child. Duckworth, who turned 50 on March 12, is also just one of 10 female lawmakers in the nation’s history to give birth while serving in Congress.

Maile Pearl Bowlsbey was named after Duckworth’s husband’s great aunt, who served as an Army nurse during World War II, our colleague Paul Kane reports. Duckworth said she and her husband consulted with former senator Daniel K. Akaka (D-Hawaii), who died last week, about the choice of name, just as they did four years ago with the birth of their first daughter, Abigail. Duckworth spent part of her childhood in Hawaii.

“Bryan, Abigail and I couldn’t be happier to welcome little Maile Pearl as the newest addition to our family, and we’re deeply honored that our good friend Sen. Akaka was able to bless her name for us — his help in naming both of our daughters means he will always be with us,” Duckworth said in a statement Monday.

Duckworth, who is a double amputee from her service in the Iraq War, talked about the perspective she gets from being a working mother in Congress. "As tough as juggling the demands of motherhood and being a Senator can be, I’m hardly alone or unique as a working parent, and my children only make me more committed to doing my job and standing up for hardworking families everywhere," she said. 

REPRODUCTIVE WARS

— Some abortion opponents aren't pleased with major guidance Pope Francis issued to the Catholic Church yesterday, which emphasizes the importance of caring for migrants and says in comparison that some Christians focus too much on only the issue of abortion. To answer God’s call to holiness, Christians must care for the poor, the sick and the immigrant just as they care for “the unborn,” Francis wrote in the document titled “Gaudete et Exsultate” (Latin for “Rejoice and be Glad”).

“Our defense of the innocent unborn, for example, needs to be clear, firm and passionate, for at stake is the dignity of a human life. … Equally sacred, however, are the lives of the poor, those already born, the destitute, the abandoned and the underprivileged, the vulnerable infirm and elderly exposed to covert euthanasia, the victims of human trafficking, new forms of slavery, and every form of rejection,” the document says.

It's Francis’s latest major publication in his five-year papacy, following works on the environment and the family that each made waves in the church, The Washington Post's Julie Zauzmer reports. “This apostolic exhortation takes up a broader theme, holiness, but some church scholars quickly read the new work as an implied response to the pope’s conservative critics,” she notes.

Marjorie Dannenfelser, president of the antiabortion group Susan B. Anthony List, pushed back, saying it's “impossible to equate the moral weight of abortion ... with any other social justice issue. “The right to live predates or precludes every other right. It is simple logic. Without the fundamental right to life, no debate can even begin on the rights that follow,” she said in a statement. “Today’s exhortation blurs lines and causes confusion.”

— Abortion rights groups led by the Center for Reproductive Rights filed a sweeping lawsuit yesterday challenging dozens of Mississippi’s abortion restrictions in federal court. The suit follows an emergency filing from CRR last month after Mississippi Gov. Phil Bryant (R) signed a 15-week abortion ban, NPR’s Sarah McCammon reports. A judge issued a temporary block until Friday on the ban, which is the earliest abortion ban in the country.

The expanded lawsuit challenges what advocates say are unconstitutional barriers to Mississippi women seeking abortions, Sarah writes. “Among the restrictions named in the suit are a 24-hour waiting period for women seeking the procedure; a ban on physicians using telemedicine to provide abortion consultation or dispense medication abortions; and rules known as ‘TRAP’ laws that abortion-rights attorneys say place unnecessarily cumbersome health and safety regulations on facilities that provide abortions," she writes.

  • CRR President Nancy Northup said in a statement there is a “coordinated strategy to undermine or eliminate women's constitutional rights to legal abortion with deceptive laws and unnecessary regulations" in Mississippi.
  • Gov. Bryant said the “mechanisms are in place to protect maternal health and I look forward to vigorously defending them." "As I have repeatedly said, I want Mississippi to be the safest place in America for an unborn child," he said in a statement to NPR.

—A few more good reads from The Post and beyond:

MEDICAL MISSIVES

Life-Threatening Allergic Reactions Rising in Children (New York Times)

INDUSTRY RX

U.S. to Allow Bayer’s Monsanto Takeover (Wall Street Journal)

STATE SCAN

California bill would create health care price controls (AP)

Democratic attorneys general fight Texas health care lawsuit (AP)

DAYBOOK

Today

  • The Center for American Progress holds an event on health care and work requirements.

Coming Up

  • The House Energy and Commerce Subcommittee on Health holds a hearing on the opioid crisis on Wednesday.
  • The House Oversight Subcommittee on Healthcare, Benefits, and Administrative Rules holds a hearing on the opioid epidemic on Wednesday.
  • The Senate Health, Education, Labor and Pensions Committee holds a hearing on the opioid crisis on Wednesday.
  • The NIH director Francis Collins will testify before the House Appropriations Subcommittee on Labor, Health and Human Services, Education and Related Agencies on Wednesday.
  • The House Oversight Subcommittee on Government Operations holds a hearing on “improper payments in state-administered programs” on Thursday.
SUGAR RUSH

Florida Gov. Rick Scott (R) announced his run for the Senate seat currently held by Sen. Bill Nelson (D-Fla.)

Florida Gov. Rick Scott (R) said he would take a "can-do attitude" to D.C. in his campaign announcement for U.S. Senate. (Video: Reuters)

Stephen Colbert on chief of staff John Kelly's status in the White House: 

Seth Meyers tells a dramatic story about his second son's birth this week: 

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