Supreme Court Denies Request for Expedited Review of Health Law

Customized Briefing for Kimberly Barry-Curley April 26, 2011 From NAHU Public Health and Private Healthcare Systems Leading the News Also in the News Legislation and Policy

Leading the News

Supreme Court Denies Request For Expedited Review Of Health Law. The Supreme Court's decision not to grant fast review to a legal challenge of the healthcare reform law generated extensive print coverage but no mention on network TV, where news of the royal wedding and severe weather dominated the broadcasts. Much of the coverage cast the decision as favoring supporters of the law. Most noted that the court rarely granted fast review, and that Justice Kagan's participation in the decision probably meant a tougher battle for opponents seeking to overturn the health care law. USA Today (4/26, Biskupic), for example, reports, "The Supreme Court's rejection Monday of a request from Virginia officials to hear the constitutionality of the federal health-care law ensures that the legal battle will play out first in lower appeals courts." The Wall Street Journal (4/26, Kendall, Subscription Publication) reports that all nine justices participated in the decision, and the ruling came with no comment, reasoning, recorded vote, or public dissent. Some Republicans have questioned whether Justice Elena Kagan should participate, pointing to her previous post as Solicitor General. Some Democrats, meanwhile, have called for the recusal of Justice Clarence Thomas, citing the outspoken stance of his wife, Virginia Thomas, who has been an avid public opponent of the health reform law. The Huffington Post (4/26, Stein) concludes, "With Kagan apparently set to vote in the Supreme Court's ultimate decision on the Affordable Care Act (and the case is destined to eventually end there) the chances that the law, or part of it, will be ruled unconstitutional are diminished." Meanwhile, the New York Times (4/26, A18, Liptak, Subscription Publication) notes that Kagan has maintained "that she had had almost nothing to do with the administration's plans to defend the health care law against legal challenges. ... Documents released last month under the Freedom of Information Act to CNS News, a conservative Web site, appear to confirm that she took pains to avoid involvement in meetings concerning challenges to the health case law." Politico (4/26, Haberkorn) reports, "The move means the case will proceed through the 4th Circuit Court of Appeals. Oral arguments are scheduled for May 10." The AP (4/26, Sherman), meanwhile, says that "the case still could reach the high court in time for a decision by early summer 2012." The Washington Times (4/26, Cunningham) reports that Virginia Attorney General Ken Cuccinelli "asked the justices in February to redirect it out of federal appeals court and resolve questions about its constitutionality more quickly." The Washington Post (4/26, Barnes) notes that Cuccinelli had told the court that "it should short-circuit the usual appeals process because of a 'palpable consensus in this country that the question of PPACA's constitutionality must be and will be decided in this court.'" In response to the decision, "Cuccinelli said it was 'disappointing but not surprising,' given the rarity of such expedited cases." More Health Law Challenges Pending. The Christian Science Monitor (4/26, Richey) reports, "To date, federal district judges have issued five decisions on the constitutionality of the health-care law's individual mandate -- the requirement that each citizen must purchase a government-approved level of health insurance or pay a penalty. ... In addition to the Fourth Circuit in Richmond, appeals are pending at the Eleventh Circuit in Atlanta, the Sixth Circuit in Cincinnati, and the federal appeals court in Washington, DC. ... Depending on how quickly the appeals courts announce their decisions, one or more of these cases could be appealed to the Supreme Court as early as next term."

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Legislation and Policy

Seniors Not Using Free Benefits Provided By Healthcare Law. The Washington Post /Kaiser Health News (4/26, Jaffe) reports, "Starting this year, seniors enrolled in Medicare no longer have to pay for more than a dozen tests and other services to help prevent or control cancer and other costly and debilitating diseases. These benefits, which also include an annual wellness exam, are part of the new federal health-care law." Yet, large numbers of seniors "aren't lining up for free mammograms or colonoscopies, although early data indicate that the free wellness checkup is luring patients." Jonathan Blum, deputy administrator at the Centers for Medicare and Medicaid Services, said, "Our hope is that by waiving cost-sharing and making preventive care more affordable, more beneficiaries will get it." Another Washington Post /Kaiser Health News (4/26, Jaffe) piece provides a list of the free Medicare services available under the healthcare law.

HHS IG Says Sebelius Could Reduce Medicare Drug Spending. Modern Healthcare (4/26, Daly, Subscription Publication) reports, "Medicare could cut its prescription drug spending by millions of dollars annually if HHS Secretary Kathleen Sebelius exercised her existing authority," according to the HHS inspector general. Although Sebelius "has yet to order drugmaker reimbursement cuts for medicines bought by Medicare when their average sales prices exceed average manufacturer prices by at least 5%," that price-cutting "authority, according to an HHS inspector general's report, would have saved $4.4 million in one recent 12-month span." Earlier this year, however, CMS Administrator Dr. Donald Berwick "wrote the inspector general...that the agency would not revive such regulations, for now."

Healthcare Law Expected To Address Some Disparities Among Minorities. CQ (4/26, Norman, Subscription Publication) reports, "Disparities in access to health care and the quality of care among members of minority groups continue and have widened during the national economic downturn," a medical school leader said Monday. Herbert Smitherman, "assistant dean of community and urban health and associate professor of internal medicine at Wayne State University School of Medicine in Detroit," said, "People are really hurting." Notably, the healthcare law will "provide some solutions through the expansion of Medicaid in 2014 to 32 million uninsured Americans and additional funding for community health care centers," Smitherman said.

CMS To Increase Reimbursement For Inpatient Rehab Facilities. CQ (4/26, Subscription Publication) reports, "Medicare reimbursement rates for inpatient rehabilitation facilities would increase by 1.5 percent in fiscal year 2012, under a rule proposed by the Centers for Medicare and Medicaid Services. The proposal also establishes a new quality reporting system authorized by the health overhaul law." Over 1,200 facilities would benefit from this change. CMS Administrator Donald M. Berwick said, "The proposed rule would extend Medicare's ongoing efforts to use its payments to encourage better care for beneficiaries who are treated in inpatient rehabilitation facilities."

Business Groups Voice Support For IPAB Elimination. CQ (4/26, Reichard, Subscription Publication) reports, "A coalition dominated by business groups sent a letter to Rep. Phil Roe, R-Tenn., on Monday endorsing his legislation to eliminate the Independent Payment Advisory Board." IPAB is a "key element of President Obama's plan to reduce Medicare spending growth and to trim deficit spending." But the groups wrote in their letter that the "kinds of changes likely to be proposed by IPAB include continued ratcheting down on provider payment rates that would preclude a serious dialogue about Medicare modernization, including redesign of fee-for-service to more adequately reflect new care models."

Group Urges Berwick To Relax Telehealth Rules For ACOs. Modern Healthcare (4/26, Carlson, Subscription Publication) reports, "Just as the CMS proposes to waive Medicare restrictions on rules pertaining to physician self-referral and anti-kickback rules for accountable care organizations, the American Telemedicine Association is arguing that the federal agency should ease up on regulatory restrictions for telehealth services in ACOs." The healthcare law, "which charged the CMS with developing the regulatory framework for the development of ACOs, says, 'The ACO shall define processes to...coordinate care, such as through the use of telehealth, remote patient monitoring, and other such enabling technologies," the group wrote in a recent letter to CMS Administrator Dr. Donald Berwick. They pointed out that in contrast, "the CMS' ACO rules include what the association called 'restriction-riddled' telehealth rules already in place for traditional Medicare beneficiaries."

States Diverging On Laws To Implement Health Exchanges. CQ Healthbeat (4/26, Reichard, Subscription Publication) reports lawmakers from Washington state and Georgia "enacted laws in recent days that show their hands on the matter of health exchanges, moves that reflect the sharp divide nationwide on how to deal with that provision of the health law." Washington state lawmakers "passed legislation that pushes ahead exchange implementation under the dictates of the law," but Georgia Gov. Nathan Deal "signed a measure that in theory would allow the state to refuse to create an exchange under the overhaul." Meanwhile, in Oregon, the state Senate "passed an exchange bill by a vote of 24-5. A similar measure is under consideration in the House." And state senators in Colorado "voted preliminarily Monday in a partyline vote to approve an exchange law, with Democrats in favor and Republicans opposed."

Oregon Legislature Passes Insurance Exchange Bill. The Oregonian (4/26, Graves) reports the state Senate "voted 24-5 in support of Senate Bill 99, which would establish the insurance exchange for individuals and small businesses in Oregon by 2014 in conjunction with the federal health reform act passed last year. Many people would qualify for subsidies through federal tax credits to help them pay for the insurance sold in the exchange." Gov. John Kitzhaber "commended the Senate for its vote on the bill and urged the House to quickly approve it, too."

North Dakota Bill Would Create Framework For Health Exchanges. The Bismarck Tribune (4/26, Beitsch) reports the North Dakota state Senate "passed legislation Monday that, while not committing North Dakota to running the program, puts in place a framework for creating the health insurance exchange required under federal healthcare reform," and it "now goes to the governor to be signed." Under House Bill 1126, "the insurance department will work with the Department of Human Services to plan the exchange, which serves as a cost and quality of coverage comparison tool."

Public Health and Private Healthcare Systems

California Bill Would Allow State Regulators To Block "Unreasonable" Health Insurance Rate Hikes. The Los Angeles Times (4/26) editorializes, "Over the past year, two major health insurers in California have proposed eye-popping rate increases, only to settle for smaller hikes after a public outcry." But now state lawmakers are considering a proposal to allow regulators to "block rate hikes they consider unreasonable, just as they can do for most other types of insurance." The bill (AB 52) by Assembly Member Mike Feuer (D-Los Angeles) "would apply the same approach to health coverage that the state applies to auto and homeowners' policies. Regulators would have the power to review new rates before they went into effect and reject premiums that were excessive, inadequate or unfairly discriminatory."

Washington State Commissioner Contends "Ministries" Should Adhere To Health Insurance Regulations. The Washington Post /Kaiser Health News (4/26, Andrews) notes that when "Jase and Jennie Stefanski needed to pay a midwife her $5,000 fee for delivering their sixth child 10 months ago, the money came" from a Christian nonprofit group called Samaritan Ministries. Although, healthcare ministries "say that they're not providing health insurance and are therefore exempt from state insurance regulations," some states "beg to differ. ... 'They've made a commitment to what is effectively health insurance,'" says Mike Kreidler, Washington state's insurance commissioner. Earlier this month, Kreidler's department "issued a cease-and-desist order to Samaritan." But within "days of Kreidler's order," the state legislature "passed an amendment to an existing bill exempting healthcare sharing ministries from state insurance regulations. The bill is on the governor's desk."

Health Insurers Reporting Double-Digit Cost Increases From Consumer Claims. The Chicago Tribune (4/26, Wernau) reports, "Employee-sponsored health plans are seeing a double-digit increase in the cost of claims, an early indication that insurance costs could rise at a similar rate," according a survey conducted by Wells Fargo Insurance Services. The nationwide survey of approximately "60 insurance companies" found that HMOs and point-of-sale plans saw a "9.6-percent increase"; PPOs and consumer driven health plans saw a "10-percent increase"; and prescription-drug plans "increased 8.7 percent." Insurance companies said that the higher costs "were a reflection of healthcare reform provisions, an aging US population, improvements in medical technology and drug therapies," and the use of specialty drugs, among other factors.

AIG Subsidiary To Pay $760,000 In Health Insurance Settlement. The Boston Globe (4/26, Weisman) reports that a unit of American International Group has "agreed to pay restitution and a fine totaling $760,000 for selling faulty health insurance products in Massachusetts, under a settlement reached with state Attorney General Martha Coakley." According to the AG's office, United States Life Insurance Co., an AIG "subsidiary known as US Life, sold products in Massachusetts that didn't cover state- mandated benefits such as mental health, maternity care, infertility care, mammography, pap test screening, and preventive care for children up to age 6." Under the settlement, US Life "agreed to set aside $500,000 to refund premiums and pay claims denied to Massachusetts residents for the mandated services." It will also pay a "$260,000 fine to the state."

Berwick: GOP Medicare Plan Amounts To "Rationing." Following an interview, Politico (4/26, Haberkorn) reports, "The man Republicans have derided as the 'rationer-in- chief,'" CMS administrator Don Berwick, "charges that Republicans' own budget proposals would end up rationing care to millions of Americans on Medicare and Medicaid." Politico adds that "without naming the plan, Berwick argued that Rep. Paul Ryan's Republican budget proposal, which includes issuing state block grants for Medicaid and 'premium support' vouchers for Medicare coverage after 2022, would deny" Americans needed care. Said Berwick, "It is paradoxical really that with all this talk of rationing, the proposal we hear about how to fix American health care is to take it away from people. That's from the very people who are crying rationing."

Colorado Senate Approves Healthcare Exchange Bill. The Denver Post (4/26, Hoover) reports the Colorado Senate must approve the health exchange bill in a recorded vote, and the future of the measure in the state House is uncertain. The Denver Business Journal (4/26, Sealover, Subscription Publication) reports Senate Bill 200, "sponsored by Sen. Betty Boyd, D-Lakewood, received the chamber's OK on what appeared to be a party-line voice vote, with majority Democrats supporting it and Republicans opposing it." SB 200 "creates a nine-member board charged with setting up a healthcare exchange - essentially an Internet marketplace where individuals and small businesses can shop for health insurance and take advantage of federal subsidies." States are "required to set up such exchanges under the federal healthcare reform bill signed into law last year, but business groups also have backed the exchange bill as a way to increase the group buying power of small companies."

Medicaid Expansion Could Cost 50% More Than CBO Estimates. The National Journal (4/26, Subscription Publication) reports expanding Medicaid "could cost 50 percent more than the Congressional Budget Office forecasts, Bloomberg reported on Monday." Medicaid "will expand in 2014 to cover most Americans earning less than 133 percent of the federal poverty level, or about $29,000 for a family of four this year. According to CBO, the expansion will cost states $60 billion from 2012 to 2021." But a Bloomberg Government study "of 35 states found that the combined program expansion could cost as much as $90 billion, albeit over a 14-year span."

Also in the News

Study Finds Lawsuits Do Not Improve Nursing Home Care. In the New York Times (4/26) "The New Old Age" blog, Paula Span says that according to "a recent analysis in The New England Journal of Medicine" based on researchers' review of "legal claims and data for nearly 1,500 nursing homes," there is "a weak correlation between quality and litigation." Noting that "nursing homes aren't sued all that frequently," Span says the study shows that when pursued, "litigation bore little relationship to the quality of the nursing homes involved, whether those homes were in states where litigation was common or rare." Furthermore, says David Stevenson, "a health policy analyst at Harvard Medical School and an author of the analysis," the increased "risk of litigation for the bottom" nursing homes "probably isn't enough to persuade an underperforming facility to clean up its act."

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