Health Policy Report

The Week in Review

Both chambers were in recess last week for the Memorial Day holiday. The Senate is expected to reconvene today, with the House set to return tomorrow.

The Week Ahead

Lawmakers return to Washington this week, with defense policy, legislative branch appropriations, and Puerto Rico’s debt crisis topping the Congressional agenda. Senators will continue their deliberation on the fiscal 2017 National Defense Authorization Act (NDAA) (S. 2943) as Armed Services Committee Chairman John McCain (R-AZ) tries to insert additional funding for Pentagon weapons programs through an account typically reserved for overseas operations. It’s unclear whether there will be enough support for the provision, which some Democrats could be inclined to support in an election year dominated by talk of national security.

The NDAA, which sets Pentagon spending levels and policy, will be a magnet for amendments and could see extended debate next week. Specifically, expect votes on provisions clashing with White House policy on seeking sanctions on Iran, ensuring that Guantanamo Bay prison doesn’t close, and reauthorizing State Department spending authority

In the House, lawmakers are expected to vote on a revised proposal (H.R. 5278) to address Puerto Rico’s $72 billion debt crisis, but it’s not clear the measure has enough support to pass despite the backing of Speaker Paul Ryan (R-WI) and Minority Leader Nancy Pelosi (D-CA). Although an open amendment process may soothe the concerns of some Members, Republican leaders may try to avoid any contentious amendments and limit debate on the legislation. If the legislation fails, Puerto Rico is likely to default on a $2 billion debt payment due on July 1.

The House will also try to jumpstart the appropriations process by bringing the Legislative Branch spending measure (H.R.5325) to the floor. The measure is typically among the least controversial appropriations bills and comes after a contentious amendment related to lesbian, gay, bisexual, and transgender rights doomed the Energy and Water Development spending bill late last month. By tradition, the Legislative Branch measure is considered under a structured rule that could exclude controversial amendments, but it may still lose Democrats’ support over report language requiring the Library of Congress to continue using the term “illegal aliens” in its catalog.

Senate Mental Health Bill Could be Added to Opioid Conference

Lawmakers are considering whether to add the Senate’s version of a mental health bill, the Comprehensive Addiction and Recovery Act (CARA), to an ongoing bicameral conference on opioids. While the idea remains in the early stages as lawmakers said they are far from a reaching final decision, adding the bill to the conference would certainly provide a path forward for the long-stalled bill. Furthermore, lawmakers are considering whether to add legislation authored by Sens. Debbie Stabenow (D-MI) and Roy Blunt (R-MO) that would set up urgent care mental health clinics in more states.

Not everyone is on board with the idea, however. Sen. Rob Portman (R-OH), champion of the opioid legislation, expressed concern that adding in additional items such as mental health legislation could slow down the work of the conference committee. Furthermore, it is unclear whether the House would be receptive to the idea of adding CARA to its work, as the lower-chamber has its own mental health bill sponsored by Rep. Tim Murphy (R-PA) which the Energy and Commerce Committee is planning to mark up this month. While there are some similarities between the bills, the Senate measure leaves out many of the more controversial elements of the House bill, such as an overhaul of the Substance Abuse and Mental Health Services Administration (SAMHSA) that some House Democrats fear would gut the agency.

House Republicans Calls Out HHS for Ignoring ACA Subpoenas

On Tuesday, Ways and Means Committee Chairman Kevin Brady (R-TX) and Energy and Commerce Committee Chairman Fred Upton (R-MI) sent a letter to the Department of Health and Human Services (HHS) asking officials there to comply with a subpoena for documents related to spending for the Basic Health Program created under the Affordable Care Act (ACA). The Basic Health Program provides an option for states to deliver choices for low-income people with slightly too much income to qualify for Medicaid, which the federal government has been funding. Republicans, however, have called this spending illegal as they say Congress has not appropriated the money to fund the program. The Obama administration has argued that it already has a permanent appropriation under the ACA section that covers the law’s tax credits, but Republicans say that permanent appropriation was only for the tax credits, not for the Basic Health Program.

In last week’s letter, Brady and Upton highlighted the fact that they have made several attempts to receive documents from HHS about the payments, including requests for documents in June, July, and November 2015. They noted that in March 2016, the Committee issued a subpoena after HHS informed them that the agency would not provide any additional documents. However, they said that they only received one heavily redacted page since then. The leaders also stated that they issued several other ACA-related subpoenas to HHS requesting documents on ACA payments, including one about cost-sharing reductions aimed at reducing enrollees’ out of pocket costs. Republicans have sued the administration over that program, and a federal judge ruled in their favor earlier this month, though that decision will be appealed. The chairmen used these examples in Tuesday’s letter to argue that administration officials are ignoring their subpoenas.

MACPAC Adopts New Conflict-of-Interest Standards

Last month, in an effort to appease Republican lawmakers and address recent concerns of bias, the Medicaid and CHIP Payment and Access Commission (MACPAC) adopted a new conflict-of-interest policy. The policy requires MACPAC Commissioners to disclose financial and other interests, allows them to excuse themselves from voting on recommendations in which they may have a conflict of interest, prohibits Commissioners while serving on the panel from being involved in litigation relating to a federal healthcare program if either the House or Senate is a party to the litigation, as well as bars them from “substantial political activity,” which includes being a paid employee or consultant of a political campaign, acting as a formal surrogate for a campaign or candidate, or engaging in sustained public involvement in forming policy positions on behalf of a campaign, office holder, or candidate.

The decision to implement a conflict-of-interest rule comes as Republican lawmakers had repeatedly questioned the usefulness of the advisory panel’s recommendations because of perceived bias, despite the fact that MACPAC works with an independent law firm to draft policies that are meant to eliminate any perceived political motivation. It’s believed there are no Republican members currently on the panel, as the last member to identify as Republican left in 2014. In March, Republicans wrote a letter to Commission Chair Sara Rosenbaum urging her to adopt policies to restrict Commissioners’ involvement in lawsuits or advocacy concerning the Affordable Care Act (ACA), Medicaid, and the Children’s Health Insurance Program (CHIP) after she had openly supported the Obama administration in a lawsuit filed against them by the Republican-led House. Rosenbaum responded to the letter by saying she would refrain from writing further amicus briefs while she is chair of MACPAC, but did not offer to recuse herself from ACA-related decisions because of the brief she wrote on behalf of the administration. During MACPAC’s May meeting when the Commission voted to adopt the rule, Rosenbaum went on to say, “This policy has been developed in response to a request from Members of Congress that we have such a policy. We think that the request was a reasonable one and one that is very appropriate for us to implement.”

Members of Congress have had mixed reactions to MACPAC’s newly implemented policy. While members from both sides of the aisle have expressed that they are pleased with the policy, including Sen.  Ron Wyden (D-OR), Rep. Frank Pallone (D-NJ), and Sen. Orrin Hatch (R-UT), a number of Republicans, including Reps. Fred Upton (R-MI) and Joe Pitts (R-PA) said the panel could have gone further, adding that while the policy took positive steps, it needed more to enforce transparency. 

Data Shows Nearly All U.S. Hospitals Using Certified Electronic Health Records

According to an announcement made by the Department of Health and Human Services (HHS) on Tuesday, nearly every hospital across the country has adopted the use of certified electronic health records (EHRs), a nine-fold increase since 2008. The agency revealed that as of 2015, 96 percent of hospitals have adopted the use of EHRs, up from 71.9 percent when data was first reported in 2011. Meanwhile, HHS found that 83.8 percent of hospitals had at least basic EHR technology in 2015, compared to 9.4 percent in 2008. Furthermore, the agency revealed that while adoption across the board has increased, general medicine hospitals are found to be more likely to have adopted such technology while fewer children’s and psychiatric hospitals have done so. They noted that one report found that in 2015, 55 percent of children’s hospitals and 15 percent of psychiatric hospitals had adopted the use of basic EHRs and that in 2008, there was significantly less difference between the adoption rate across the types of hospitals. Additionally, the agency pointed to a separate report that showed that the percentage of non-federal acute care hospitals with the ability to share information electronically increased between 2014 and 2015. For example, they said that the percentage of hospitals that could electronically send health records increased from 78 percent to 85 percent between 2014 and 2015, while the percentage of hospitals that could receive health records increased from 56 percent to 65 percent.

Exchange Premiums Show a Wide Range of Change from Last Year; United to Exit California Exchange; Most Insurers not Looking to Leave Exchanges

A new report from the nonprofits Robert Wood Johnson Foundation and Urban Institute finds that, between 2015 and 2016, 45 states saw an increase in the average premium price for the lowest-cost silver health plan purchased in the Obamacare insurance marketplaces. Nationwide, the average premium price for insurance coverage purchased under the Act increased by 8.3 percent. However, the authors of the study declared that number “a fairly meaningless statistic since different markets are having very different experiences.”

Looking at 499 rating areas across the country, the report’s authors found that 29.1 percent of all Americans live in states with average premium price decreases, while 26.3 percent of the population lives in areas with the largest increases — as defined as at least 15 percent. The 2015-2016 change in the average premium price for the lowest-cost silver plan offered in the marketplaces ranged from an increase of 41.8 percent in Oklahoma to a decrease of 12.1 percent in Indiana.

In related news, health insurance giant UnitedHealth announced that it is dropping out of the Affordable Care Act (ACA) exchanges in California at the end of this year, which will also affect individual policies sold outside the Covered California exchange. The immediate impact on overall coverage numbers is expected to be minimal, however, as UnitedHealth only joined the California exchange this year and only had about 1,200 enrollees. The insurer had announced in April that it was leaving the exchanges in all but a handful of states after reports of financial losses, but had not discussed plans in California. Despite the insurer’s announcement, UnitedHealth will likely continue offering coverage to employers in California and to government workers and their families through the California Public Employees’ Retirement System.

Meanwhile, a new report from the Commonwealth Fund found that the majority of insurers are not exiting the state exchange market, and many are considering growing their participation. The private foundation had reviewed insurer earnings calls to better understand their perspective and experiences on the healthcare marketplaces after United Health had announced it was dropping out of many states. The analysis found that only one other insurer, Humana, explicitly said it is considering exiting the ACA marketplaces in 2017. The report also found that despite early losses for many insurers, many see opportunities to grow their involvement in the marketplaces as they adapt.  Furthermore, the report noted that while not all insurers are expected to succeed in the new marketplaces, “there are clearly insurers that see business value in marketplace participation and are committed to the underlying principles of the ACA.”