Will Humble Affordable Care Act, Medicaid, Wills Blog

Federal 5th Circuit Court Signals New Threat to the ACA

Health Care Increasingly Looking Like a Major Campaign Topic for 2020

Background on the 2012 Ruling Upholding the ACA

In the 2012 Ruling that upheld the ACA, Chief Justice Roberts wrote that: “… the Affordable Care Act’s requirement that certain individuals pay a financial penalty for not obtaining health insurance may reasonably be characterized as a tax… because the Constitution permits such a tax, it is not our role to forbid it, or to pass upon its wisdom or fairness.” 

Roberts rejected the Obama Administration’s argument that the federal government’s authority to regulate interstate commerce provides the authority needed for the ACA to be constitutional (the Court struck down that argument 5-4).  Fortunately, the court held (5-4) that the ACA was constitutional based on the federal government’s taxing authority.

The Texas v Azar Challenge

Last week the 5th US Circuit Court of Appeals heard the Texas v Azar case which, once again, challenges the constitutionality of the Affordable care Act. Arizona is a party to the case and is supporting the suit (to overturn the ACA).

This latest challenge essentially argues that the ACA is no longer constitutional because the tax penalty for not having health insurance has been eliminated. 

All the media reports that I found about the questions they were asking and the statements they were making suggest that the appellate court may rule that the ACA is unconstitutional (now that the tax penalties for not having insurance are gone) – which would send the case up to the Supreme Court.

Protections at Risk

In addition to the coverage that the ACA provides through Medicaid expansion and the availability of Marketplace Plans with subsidies, the ACA has a ton of health insurance reform measures including preventing commercial health insurance companies from:

1) denying someone health insurance because they have a preexisting condition -called the “guaranteed issue” requirement;

2) refusing to cover individual services that people need to treat a pre-existing condition- called “pre-existing condition exclusions”; and

3) charging a higher premium based on a person’s health status – called the “community rating” provision.

Supreme Court Forecast

Because of the makeup of the 5th Circuit Court of Appeals (and the signals they sent through their questions at the hearing this week) the Court will likely uphold O’Connor’s decision to invalidate the ACA and the case will probably end up with the US Supreme Court…  which has a different cast of characters than it did when the ACA was originally upheld back in 2012 by a 5-4 vote.

Since the 2012 decision upholding the ACA, Gorsuch has replaced Scalia and Kavanaugh has replaced Kennedy.  Both Scalia and Kennedy voted to overturn the ACA- so not much on that score has changed.

Chief Justice Roberts voted with the majority that upheld the law. His argument rested on the ACA’s link to the financial penalties for not having health insurance. But remember, the financial penalties for not having health insurance were removed from the IRS tax codes in last year’s federal tax overhaul, pulling out the structure that Roberts used in his argument.

The bottom line is that the ACA, including its protections for folks with pre-existing conditions, may very well be in jeopardy if Roberts views the ACA as fundamentally different now that the financial penalties are gone.

Healthcare’s Link to the 2020 Election

If a decision comes from the 5th Circuit in the next couple of months (as is likely) the US Supreme Court could be hearing the case during their October 2019 – April 2020 schedule…  making access to healthcare a sentinel issue in the November 2020 election.

Pre-existing exclusion exemptions, community rating, guarantee issue of health insurance, the availability of Marketplace plans with subsidies, and Medicaid expansion will all be front and center with the electorate. All very personal issues.

Social science suggests that people feel a loss of a benefit much more acutely than a missed opportunity.  In other words, it’s a lot harder to take something away than to not give it in the first place. 

With the American people now accustomed to the benefits that the ACA provides, there could be a backlash against those that take those benefits away.  Just sayin’.

Will Humble Affordable Care Act, Medicaid, Public Health Law, Wills Blog

AZ Can Prepare for a Post ACA Arizona

It’s easy to see how the ACA could end up being struck down once this case gets to the highest court. Gone would be the health insurance market reforms like protection for folks with pre-existing conditions, community rating pricing and guarantee issue as well as Medicaid expansion and the health insurance marketplaces.

Prior to the ACA, the standards to protect people with pre-existing conditions were determined at the state level.  Most states including AZ had very limited protections. Many insurers maintained lists of up to 400 different conditions that disqualified applicants from insurance or resulted in higher premiums.  35% of people who tried to buy insurance on their own were either turned down by an insurer, charged a higher premium, or had a benefit excluded from coverage because of their preexisting health problem.

Fortunately, Arizona is partially in control of our own destiny if the ACA is struck down. We couldn’t do much about Medicaid rolling back to pre-ACA levels or the loss of subsidies on the Marketplace, but we could have some control over the market reforms like pre-existing condition exclusions, community pricing, and guarantee issue.

Several states have enacted their own laws to be consistent with the ACA market reforms. Several states already have their own laws that incorporate some or all the ACA insurance market protections. Arizona could do the same.  Also, CMS released new resources to support states with improving their health insurance markets and making coverage more affordable through section 1332 waivers.

The good news is that we have time before the Texas v. Azar case makes it to the Supreme Court. A good 1st step would be for the Governor to ask our state agencies to generate (or commission) a report outlining the real-life impact in Arizona in the event that the Texas v. Azar suit is successful. The report would put forward options for state-based health insurance market reform laws to require things like prohibiting pre-existing condition exclusions.

Such a report would give the Arizona State Legislature an analysis to evaluate public policy options for state-based market reforms.

I know what you’re thinking, it’s impossible to pass these kind of market reforms in Arizona.  Maybe, but many thought Arizona’s expansion of our Medicaid system back in 2013 was impossible.  That case study shows that with the right kind of leadership on the 9th floor, anything is possible.

Will Humble Medicaid, Wills Blog

Medicaid Work/Community Engagement Requirements May Be Phased In

Back in January CMS approved Arizona’s request to include work requirements and/or community engagement and reporting requirements as a condition of Medicaid enrollment beginning on January 1, 2020.  

The work requirement/community engagement Waiver request was filed back in 2018 and is mandated by Senate Bill 1092 (from 2015) which requires AHCCCS to ask CMS’ permission to implement new eligibility requirements for “able-bodied adults”.  Folks that are exempted from the upcoming requirements include:

  • Pregnant women up to the 60th day post-pregnancy

  • Former Arizona foster youth up to age 26

  • Members of federally recognized tribes

  • Designated caretakers of a child under age 18

  • Caregivers who are responsible for the care of an individual with a disability

  • Members determined to have a serious mental illness (SMI)

  • Members who are medically frail

  • Members who have an acute medical condition

  • Members who are in active treatment for a substance use disorder

  • Members with a disability recognized under federal law and individuals receiving long term disability benefits

  • Full-time high school, college, or trade school students

  • Survivors of domestic violence

  • Individuals who are homeless

At last week’s State Medicaid Advisory Council meeting, AHCCCS announced some changes that they hope to make in order to make the transition easier for their members that don’t qualify for exemptions when implementation begins. 

They’re hoping to gradually phase in the AHCCCS Works program by geographic area (subject to CMS approval). If approved, the program will be implemented in three phases- beginning no sooner than 1/1/20:

Phase 1: Most Urbanized Counties: Maricopa, Pima, and Yuma

Phase 2: Semi-Urbanized Counties: Cochise, Coconino, Mohave, Pinal, Santa Cruz, & Yavapai

Phase 3: Least Urbanized Counties: Apache, Gila, Graham, Greenlee, La Paz, & Navajo

The idea behind the phase in is to:

  • Establish community engagement supports for members in regions with limited employment, educational and training opportunities, accessible transportation, and child care services;

  • Give the State time to assess the availability of community engagement resources in rural areas and address gaps; and because 

  • Counties with a higher percentage of urban populations are likely to have sufficient community engagement supports compared to counties with a higher percentage of rural populations. 

Will Humble Affordable Care Act, Health Insurance, Public Health Law, Wills Blog

States Lowering Marketplace Premiums with 1332 Waivers

One of the successes of the Affordable Care Act was the development of the health insurance Marketplace.  States can have can have a significant impact on what the premiums are on their state’s Marketplace plans by using some of the policy tools available in the ACA. 

For example, Section 1332 waivers in the ACA allow states to implement innovative market driven solutions to lower premiums and protect coverage at the same time.  The goal of Section 1332 waivers is to allow states to experiment with alternative payment and delivery models. 

Recent CMS guidance changed several components of the 1332 waiver processes including allowing executive orders or state regulations to pursue 1332 waivers.

Many states have recently taken administrative action to lower the Marketplace premiums in their states by implementing reinsurance waivers.  Reinsurance programs allow states to reimburse insurers for certain high-cost claims, allowing them to lower premiums overall. In essence, reinsurance (insurance for insurance) creates a backstop for insurers for super-expensive claims – which makes insurance for everybody more affordable. 

So far this year, CMS has approved Section 1332 reinsurance waivers in Alaska, Hawaii, Maine, Maryland, Minnesota, New Jersey, Oregon, and Wisconsin. There are reinsurance waiver applications pending in Colorado (following their passage of HB 19-1168) and North Dakota (following their enactment of HB 1106).

More 1332 waiver applications are on the way too.  Delaware, Montana, and New Mexico enacted legislation authorizing reinsurance 1332 waiver applications – so those waiver applications should be on the way in the near future.   Maryland passed HB 1098 which authorizes (but doesn’t require) their state to submit a 1332 reinsurance waiver by January 1, 2020.

Basically, 1332 waivers offer states the opportunity to implement reinsurance waivers that have a direct and beneficial effect on Marketplace premiums that benefit their residents. Seems like a no-brainer in terms of smart public policy. 

Will Arizona be next in line to seek a reinsurance waiver to help reduce Marketplace premiums in AZ? 

Will Humble Public Health, Public Health Law, Return on Investment, Vaccination, Wills Blog

Using Public Health Policy to Boost Vaccine Coverage

Measles across the country have deteriorated to a level not seen in 30 years, and several states have recently taken direct action to implement policies to boost immunization coverage.

At the beginning of 2019, only California, Mississippi, and West Virginia had state laws that only allowed medical exemptions from their school attendance requirements. Now there are 3 more states like that.  This year Maine and New York passed laws that limit school vaccine exemptions to medical reasons.

 The Maine legislation (which will take effect on September 1, 2021) repeals the state’s religious and philosophical (personal belief) exemptions – but grandfathers in kids that have a non-medical exemption if the parents show that a healthcare provider was consulted about the benefits and risks of vaccinations.

The New York legislation (which took effect immediately) repealed their religious exemption (and has no grandfather clause). NY didn’t have a persona exemption, so all they have now is a medical exemption for school attendance requirements.

Washington state removed their former philosophical exemption for the measles, mumps, and rubella vaccine.

I’ve heard through the grapevine that Arizona state government will be working on a “Breakthrough Project” in the coming year that will have a core goal of improving Arizona’s decreasing immunization rates. 

“Breakthrough Projects” are something in the “Arizona Management System” (a Governor’s Office Initiative) that is also a state agency scorecard metric.  Breakthrough Projects are supposed to: 1) align with an agency performance measure; 2) result in a sustainable success that addresses a stakeholder concern; and 3) require “a substantial design or re-design of a work process documented with an A3 project plan”.

I’ll stay tuned to get more information about what the ADHS has planned for the Breakthrough Project and include it in a future Policy Update.

Will Humble Environmental Health, Public Health, Public Health Law, Tobacco, Wills Blog

Flagstaff City Council Approves Tobacco 21 Ordinance

The Flagstaff City Council approved a Tobacco 21 ordinance last week! Here’s a copy of their ordinance, which follows the national best practices model for Tobacco 21.

The ordinance is a few pages long- but essentially it will limit the sale of tobacco including electronic cigarettes to only people over 21.  It’ll require retailers that sell tobacco and e-cigs to get a license (the city will do compliance checks). 

Fines for retailers who violate the ordinance will begin with a $500 fine.  A 2nd violation within 36 days will be a $750 fine (and a loss of the ability to sell tobacco products for a week).  A 3rd violation within 36 days increases the punishment to $1,000 and 30 days of no-sell.  A 4th violation is a $1,000 and the retailer won’t be able to sell tobacco products for 3 years.

Perhaps next legislative session a bill will move forward that establishes a statewide Tobacco 21 law.

Will Humble Nutrition, Public Health, Wills Blog

SNAP: An Underused Lever to Address the Obesity Epidemic

One of the bigger policy levers to improve the nutrition decisions that people make lies with the Supplemental Nutrition Assistance Program or SNAP. By making some policy changes within the program, we could hard-wire better nutrition decisions among program participants.

The thing is that the federal government (congress and USDA) would need to take the lead to implement evidence-based policy decisions – policy changes that would have a profound impact on nutrition and obesity in the US.

To help make the case, the ADHS contracted with the ASU School of Nutrition & Health Promotion back in 2012 to write a White Paper that outlined evidence-based strategies to improve the effectiveness and efficiency of SNAP including: 1) improving access to healthy foods to provide better choices; 2) incentivizing the purchase of healthy foods; 3) restricting access to unhealthy foods; and 4) maximizing education to more effectively reach a larger population of SNAP participants.

That paper, entitled Policy Considerations for Improving the Supplemental Nutrition Assistance Program (SNAP): Making a Case for Decreasing the Burden of Obesity. Back in 2012 the ADHS team presented the recommendations and evidence at the American Public Health Association Annual Meeting that year.

This month the American Journal of Public Health published a paper on a similar topic entitled Support for Supplemental Nutrition Assistance Program (SNAP) Policy Alternatives Among US Adults. 

The article measures public and participant support regarding some important policy options like removing sugary drinks and candy from the allowable products for purchase list and providing SNAP participants with a supplemental benefit that could only be used for fruits and vegetables. The authors found that most respondents approved of both the restrictive policies (e.g. removing sugar drinks and candy from the buy list) and the supplemental policies tested.

Important information for Congress and the USDA to consider when the Farm Bill comes up for re-authorization next time- which will be in a few years. Honestly, with the obesity epidemic we’re facing- we really should be using all the policy levers we can to dial back obesity- but congress and the USDA have consistently resisted these policy options- perhaps out of fear of the junk food lobby?

Will Humble Community Health Workers, Wills Blog

Arizona’s Community Health Worker Workforce:

Assessment of the Integration and Financing of Community Health Workers within Arizona Medicaid Health Plans

Now that the process is under way to provide voluntary certification of community health workers (via the ADHS Rulemaking), an important next is to engage Arizona health plan leadership in conversations about the integration and sustainability of the CHW workforce within Arizona’s Medicaid contracted health plans and provider networks. 

To that end, the Center for Health Equity Research at NAU through funding from the ADHS and in collaboration with the UA Prevention Research Center (AzPRC) wrote a report that was released this week which provides insight into innovative strategies for integrating, sustaining and scaling of the CHW workforce within AHCCCS.

The new report provides direct insight to this pathway via conversations with health plan leadership including topics on:

1. Current and Projected Utilization

2. Roles, Competencies and Skills

3. Recruitment and Training

4. Financing and Payment Models

5. Healthcare and Workforce Policy

The report found that Arizona health plan leaders recognize that Community Health Workers can play a significant role in improving patient outcomes and reducing system costs for health care. Many health plan leaders already actively support their contracted provider networks to better integrate and finance CHWs to meet HEDIS measures.

In fact, 4 AHCCCS Health Plans and 10 of 22 Federally Qualified Community Health Centers currently employ CHWs to link patients to community resources to promote self-management.

The research team found that health plan leadership expects that the new Arizona Complete Care Contracts will fundamentally expand the need for CHWs and the core competencies, roles and skills as plans expand their services and seek creative approaches to meeting membership medical and non-medical needs.

This week’s report sheds light on important next steps toward building CHWs into the care network.

Congratulations and thanks to AzPHA member Dr. Samantha Sabo, Louisa O’Meara, and Katie Castro for their work on this important roadmap document.

Will Humble Medicaid, Wills Blog

Arizona Medicaid Members Get a Lyft

Non emergency medical transportation for doctor appoints can be a covered benefit for Medicaid members that qualify. The benefit is aimed at members that need assistance to get to medical appointments but may not have a drivers license or car etc.

AHCCCS recently became the 1st Medicaid agency to take advantage of the new efficiencies provided by ridesharing services.  AHCCCS Director Jami Snyder was quoted in media report this week as saying  “We are proud to be the first Medicaid program in the country to establish an innovative regulatory approach that seamlessly offers rideshare as a non-emergency medical transportation option for Medicaid beneficiaries.” 

This policy change will help more people get to consultations without having to rely on public transportation. Here’s the statement on the AHCCCS website about the new policy: 

Adding rideshare companies as providers of non-emergency medical transportation can add flexibility to the health care delivery system and increase transportation options for Medicaid members. Under the new AHCCCS provider category, rideshare companies are eligible to serve Medicaid members who do not require personal assistance during medically necessary transportation. As such, the training required of these providers is reduced as compared to traditional non-emergency transportation providers.

AHCCCS members will not need to change how they request non-emergency medical transportation, and should continue to contact their health care plan to request service. The health care plan and/or their transportation broker will assess the member’s need and determine whether a Transportation Network Company is a viable option for that particular transportation need.

Non-emergency medical transportation is a covered benefit for AHCCCS members when: the physical or behavioral health service for which the transportation is needed is a covered AHCCCS service; the member is not able to provide, secure or pay for their own transportation, and free transportation is not available; and the transportation is provided to and from the nearest appropriate AHCCCS registered provider. The complete transportation policy is published in the AHCCCS Medical Policy Manual, Chapter 300-BB and available on the AHCCCS website.

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