Essential Health Benefits and the Affordable Care Act: Law and Process by Nicholas Bagley, Helen Levy :: SSRN

January 31, 2013

Beginning in 2014, the Affordable Care Act (ACA) will require private insurance plans sold in the individual and small-group markets to cover a roster of “essential health benefits.” Precisely which benefits should count as essential, however, was left to the discretion of the Department of Health and Human Services (HHS). The matter was both important and controversial. HHS nonetheless announced its policy on essential health benefits by posting on its website a 13-page bulletin stating that it would allow each state to define essential benefits for itself by choosing a “benchmark” plan modeled on existing plans in the state. On both substance and procedure, the move was surprising. The benchmark approach departed from the uniform, federal standard that the statute appears to anticipate and that many informed observers expected HHS to adopt. And announcing the policy thorough an internet bulletin arguably allowed HHS to sidestep orthodox administrative procedures, including notice and comment, White House review, and preenforcement review in the courts.

What are we to make of this? This chapter explores two questions. First, is the benchmark approach a lawful exercise of HHS’s authority under the ACA? Although HHS may have brushed up against the limits of its discretionary authority, we conclude that the approach likely will (and, in our view, should) be upheld in the event of a challenge. Second, did HHS’s announcement of the benchmark approach through an internet bulletin allow the agency to avoid the very administrative procedures that typically serve to constrain the exercise of agency discretion? The answer here is a flat no. The agency’s adroit use of guidance documents instead resulted in a process that was more open to public scrutiny and external oversight than conventional rulemaking would have been.

via Essential Health Benefits and the Affordable Care Act: Law and Process by Nicholas Bagley, Helen Levy :: SSRN.


Can Medical Tourism Save Us From Obamacare? – Reason.com

January 31, 2013

If the double whammy of Obamacare, which will be fully up and running in 2014, and a rapidly aging population creates pronounced health-care shortages, more and more Americans may soon start looking abroad for fast, affordable, and effective treatments for all sorts of medical problems.

The global health-care industry is booming, which is creating new opportunities for medical travelers to purchase everything from discount dental work to state-of-the-art heart surgery. The international accreditation agency known as Joint Commission International evaluates the quality of hospitals around the world. It has given its stamp of approval to 546 hospitals worldwide and the list is growing faster than ever.

via Can Medical Tourism Save Us From Obamacare? – Reason.com.


Will ObamaCare Undermine Union Membership? – Hit & Run : Reason.com

January 31, 2013

One little-discussed side effect of ObamaCare is that it could undermine union membership by reducing the incentives for some unions to offer health benefits.

The issue here is how the law deals with multiemployer health plans, which cover as many as 26 million Americans, and are especially popular with unions whose members frequently work irregular hours for multiple customers. ObamaCare  requires these plans to comply with a number of regulations that are likely to drive up costs, but it doesn’t allow employers who provide benefits through multiemployer plans access to subsidies or tax credits. The only way for many of those union members currently covered by multiemployer plans to get subsidies would be for the unions to stop offering those plans.

via Will ObamaCare Undermine Union Membership? – Hit & Run : Reason.com.


How to cut $9.4 trillion from Medicare, in 150 easy steps!

January 31, 2013

On Wednesday morning, the Kaiser Family Foundation released its most ambitious Medicare reform document: 150 cost-cutting policies that span 216 pages. If you enacted all of them in one fell swoop, you would cut $9.4 trillion in Medicare spending over the course of the next decade.

via How to cut $9.4 trillion from Medicare, in 150 easy steps!.


US expects big Medicare savings from competitive bid program | Reuters

January 31, 2013

Medicare and its beneficiaries in 100 metropolitan areas will pay less for durable equipment beginning July 1.

The new prices, set by competitive bidding, are expected to save 45 percent on average, on products including walkers, wheelchairs, oxygen equipment, hospital beds and prosthetics. Diabetic testing supplies will be available at savings of 72 percent through a separate national mail-order program.

via US expects big Medicare savings from competitive bid program | Reuters.


Weekly Checkup No. 59: Evidence of Medicare’s Systematic Problems | American Action Forum

January 31, 2013

Medicare is a major contributor to the country’s deficits, and spending levels are increasing at an unsustainable pace. Policymakers presume to comprehend the underlying reasons for this rapid cost growth, and in part, they do. Higher costs are a consequence of many factors that include a larger population aging into retirement, longer life expectancies, better medical care and the expensive treatment of what were once deadly diseases. None of these cost drivers are negative trends in and of themselves. So, is the US destined to see Medicare spending spiral higher and higher as a result of demographic changes and medical advances? If so, are draconian reimbursement cuts or benefit limits the only options to reduce Medicare outlays?

via Weekly Checkup No. 59: Evidence of Medicare’s Systematic Problems | American Action Forum.


The Power to Block the Affordable Care Act: What are the Limits? by John Kraemer, Lawrence Gostin :: SSRN

January 30, 2013

Though Supreme Court upheld most parts of the Affordable Care Act (ACA), Congress’ goals in enacting it could still be frustrated by non-implementation. During his campaign for president, Governor Romney promised “to issue Obamacare waivers to all fifty states.” While such blanket waivers would likely violate the Constitution’s Take Care Clause, the ACA does permit other waivers. To be lawful, however, they must meet certain requirements designed to enhance access and lower cost. A president who opposes the ACA might be able to limit its implementation by refusing to issue premium subsidies in federally operated insurance exchanges, and this might be deemed a reasonable interpretation of the ACA because of a drafting error Congress made. Additionally, a president who opposes the individual mandate might be able to limit its effectiveness by directing the IRS not to make collecting the mandate’s tax penalty a high priority, and it is unclear whether the courts would accept the constitutionality of such an approach.

Although President Obama won the election, Congress could choose not to fund key parts of the ACA, but it lacks the votes to repeal the Act. Many parts of the ACA, including the health insurance exchanges and high-risk pools for people with pre-existing conditions, were directly funded and, therefore, would require an act of Congress to de-fund. Other components, however, including many relating to health workforce expansion, quality improvement, and some prevention programs were not directly funded, so they could be starved of money through Congressional inaction.

via The Power to Block the Affordable Care Act: What are the Limits? by John Kraemer, Lawrence Gostin :: SSRN.