The Centers for Medicare & Medicaid Services (CMS) recently proposed a rule to allow Medicare Advantage plans to expand telehealth benefit coverage. (See alert for more detail) This proposed rule implements the statutory provisions in section 50323 the Bipartisan Budget Act of 2018. What you might not know, however, is that the Bipartisan Budget Act of 2018 is only one of many legislative vehicles by which advocates for telehealth expansion have been able to move the needle definitively in their favor during this session of Congress.

Over the past two years, Congress has shown its support for the utilization of telehealth by introducing forty-one bills that, if passed, would require Medicare to reimburse providers for their use of telehealth to treat numerous health conditions such as stroke diagnosis, mental health, chronic care management and opioid addiction treatment. Of note, the Creating High-Quality Results and Outcomes Necessary to Improve Chronic (CHRONIC) Care Act of 2017 was the predecessor bill that passed out of the Senate in September of 2017 and became law on February 9, 2018 as a part of the Bipartisan Budget Act of 2018. Continue Reading Government Affairs – The Progress of Telehealth Bills in Congress

The “what will Congress do” news leads can now stop. The Supreme Court issued its decision in King v. Burwell and Congress does not need to fix anything because, by a vote of 6-3 in an opinion written by Chief Justice John Roberts, the Supreme Court held that the subsidy provisions of the ACA are not broken, and that individuals who purchase insurance through the Federal Exchange are eligible for ACA subsidies. In a nutshell, the Court held that the most reasonable reading of the ACA provision making credits available to individuals who purchased insurance on an exchange “established by the State” makes tax credits available to individuals who purchased insurance through the Federal Exchange. The decision delves deeply into health insurance policy concepts as well as the dark-art of statutory interpretation and the underlying chaotic legislative process to find, ultimately, that it was “implausible” that Congress intended to limit tax credits to individuals who purchased insurance through a State Exchange. See King, 576 U.S. __ (2015), slip op. at 17.

At the policy level, the Court clearly understood that the three main pieces of the ACA are “interlocking.” Id. at 1. Community rating and guaranteed issuance by insurers, and mandated purchase by individuals, are underpinned by subsidies for individuals who cannot afford what they have been told they must purchase. The Court discussed the health reform precedents in states like Massachusetts and New York at length, and even used the term “death spiral,” to make clear that it understood the carrot and stick approach embodied in the ACA. Id. at 15. Taking away the “carrot” – tax credits – that makes insurance affordable for large swathes of the population will make the scheme completely untenable in states that have not created an exchange, because too many people will fall out of the mandated purchase category by qualifying for an exemption where premiums would constitute too high a percentage of their income. This, in fact, was the premise of the lawsuit brought by challengers, who reside in Virginia, a state that has not created a State Exchange. Without access to the ACA’s tax credits, their income would be low enough that they would no longer be subject to the ACA’s mandated purchase provisions, which is what they sought.

Continue Reading Context Matters: Supreme Court Rules in Favor of ACA Subsidies

Crowell & Morning  invites you to join us for a half-day of discussions regarding four significant topics affecting the long term care industry. Members of C&M’s Government Affairs and Health Care groups, along with featured speakers from Capitol Hill, federal agencies and trade groups, will lead sessions providing important updates on:

  • Legislation in Congress Affecting the Long Term Care Industry
  • Reimbursement Issues Facing the Long Term Care Industry
  • CMS, Medicare Part D, and Medicaid Issues Facing the Long Term Care Industry
  • Current Operational Issues Facing the Long Term Care Industry

Continue Reading C&M’s Long Term Care Policy Update Event

In a March 10, 2014 letter to Congress, CMS Administrator Marilyn Tavenner indicated that—based on concerns from Congress and the public—CMS shall not finalize the Proposed Rules’ proposals that would have:

  • Removed the protected class definition for immunosuppressant drugs used in transplant patients, antidepressants, and antipsychotic medicines used to treat schizophrenia and certain related disorders (79 Fed. Reg. 1942 – 44);
  • Imposed a minimum level of savings over the costs available at retail cost-sharing rates and limitations on how broadly cost sharing should be applied to a Part D sponsor’s formulary Part D plans’ participation in preferred pharmacy networks (79 Fed. Reg. 1974 – 77);
  • Reduced the number of Part D plans a single PDP sponsor in the same region may offer (79 Fed. Reg. 1961 – 64); and
  • “Clarified” the non-interference provisions of § 1860D-11(i), which provides that: “In order to promote competition under this part and in carrying out this part, the Secretary: (1) may not interfere with the negotiations between drug manufacturers and pharmacies and PDP sponsors; and (2) may not require a particular formulary or institute a price structure for the reimbursement of covered [MA-PD] drugs.” (79 Fed. Reg. 1969 – 72).

CMS’s forbearance on these issues was announced shortly before a House vote to block the proposed changes to the definition of protected drug classes and amidst significant concern from industry and the public alike over both that and the other proposed changes. The letter goes on to state that CMS shall, “engage in further stakeholder input before advancing some or all of the changes in future years.”

An interim final rule addressing third-party premium payments to qualified health plans is under regulatory review at the Office of Management and Budget, according to an online posting on that agency’s website on March 4, 2014. Both providers and payors have anxiously watched for clarifications in this area following a series of conflicting statements from HHS on the matter. The rule, when issued, will likely clarify whether certain entities may subsidize the purchase of health insurance on behalf of other individuals.

In October of 2013, Kathleen Sebelius stated in a letter to Congressman Jim McDermott that qualified health plans and other ACA-funded government programs would not be considered “federal health care plans” for the purposes of the federal Anti-Kickback Statute. Many interpreted Sebelius’s statement that the AKS would not apply as allowing providers to make premium payments on behalf of uninsured patients, thus ensuring that providers would receive payment for what would otherwise likely be uncompensated care. But a few days later, the Centers for Consumer Information and Insurance Oversight issued a FAQ encouraging insurers to reject payments from third parties, citing concerns that such payments would distort the risk pool. It later clarified that payments from Indian tribes, state and federal assistance programs, and private, not-for-profit foundations were acceptable.

The OMB posting offers no substantive information about the content of the eventual rule and no timeline for its release. Because it is being issued as a final rule, it will be implemented upon release or shortly thereafter, with time for comments following its implementation.

On August 7, 2013, the Office of Personnel Management (OPM) released a proposed rule on federal employee health benefits for members of Congress and congressional staff. The Affordable Care Act (ACA) contains a provision requiring Congress and their staff to obtain health insurance coverage via an Affordable Insurance Exchange or a health plan created by the ACA, instead of through the Federal Employee Health Benefits (FEHB) Program. The proposed rule implements this requirement, requiring Congress and its staff to obtain Exchange coverage beginning January 1, 2014. Under the proposed rule, Congress will designate which employees are eligible for FEHB coverage by October of the year before the coverage year, and this designation is effective for the entire calendar year that the employee works for that Member of Congress. The proposed rule is available here.