Mid-August Congressional and Administration Health News


Washington News – Obama Administration/Congress/2016 Election

Election 2016

Republican presidential nominee Donald Trump overhauled his campaign leadership Wednesday, hiring Breitbart New’s Stephen Bannon as campaign CEO and promoting pollster Kellyanne Conway to campaign manager, while retaining Paul Manafort as campaign chairman. According to FiveThirtyEightmodeling based on current polling, Clinton is still widening her lead over Trump and is now projected to receive 49.0% of the popular vote with Donald Trump receiving 41.0% and Libertarian Gary Johnson, 8.8%.

FY17 Emergency Spending Adjustment Expected to Be $8.6B

The amount of funding lawmakers can use to respond to emergencies without violating budget caps is expected to increase for fiscal 2017, according to the nonpartisan Congressional Budget Office. In a report released Aug. 12, the CBO projected the adjustment amount at $8.6 billion, up from $7.1 billion previously available as a cap adjustment.

Emergency funding does not count against the limits on discretionary funding set by the 2011 Budget Control Act (Pub. L. No. 112-25) and later revised in 2013 (Pub. L. No. 113-67) and 2015 (Pub. L. No. 114-74). Because of that, it can be attractive to lawmakers hoping to boost funding to a favored priority. To deter abuse, though, the 2011 law limited emergency funding to a formula that includes the average of the last 10 years of emergency-designated funding and the previous year’s disaster funding level to determine the upcoming year’s outside-the-caps disaster funding level adjustment.

U.S. Prepares for Shift of Internet Governance

The Internet Corporation for Assigned Names and Numbers (ICANN), which coordinates internet operations, is expected to tell the Obama Administration on Aug. 12 that it’s ready to shift away from longtime U.S. government oversight of technical internet functions, according to several trade organizations and think tanks that follow the matter.

The move is not without its critics, who question the legality of the transition and raise concerns that the switch will make the internet more vulnerable to hostile foreign government control. A report from ICANN that convinces the government of its readiness would be the last hurdle the corporation needs to clear in a two-year transition that removes the U.S. government’s stewardship over key internet domain name functions. The U.S.’s relinquishment of this role would make ICANN a self-governed entity that would directly approve changes to the internet’s root zone file, which functions similar to an address directory of the internet.

Earlier this summer, the non-profit California corporation said it cleared two technical requirements requested by the U.S. Commerce Department’s National Telecommunications and Information Administration for its Aug. 12 report. NTIA also reported in June that the corporation was close to finalizing a series of measures to establish accountability and operational structures, which were also requested for the August report.

Critics of the move, including a handful of Republican Congressmen and advocacy groups, are pushing for legislation or litigation to stall or stop the transition, citing concerns of the legality of the process. It would be difficult to garner support for these measures before the Commerce Department’s contract with ICANN is scheduled to expire Sept. 30.

Obama Administration Tightens Truck Emissions Limits

Medium- and heavy-duty trucks, ranging from school buses to dump trucks, will have to meet tightened greenhouse gas emissions standards and fuel economy standards released Aug. 16 as one of the last major environmental regulations under the Obama administration.

The Environmental Protection Agency and the National Highway Traffic Safety Administration jointly issued the final rule, which is to be phased in through 2027. The administration estimates the program will prevent 1.1 billion metric tons of carbon dioxide emissions, save vehicle owners $170 billion in fuel costs and reduce oil consumption by as much as 2 billion barrels over the its lifetime.


Congress remains in recess through Labor Day, resuming September 6.

Health Care News

Aetna to Quit Most ACA Markets, Joining Major Insurers

Health insurer Aetna Inc. will stop selling individual Obamacare plans next year in 11 of the 15 states where it had been participating in the program, joining UnitedHealth & Humana in quitting among other major insurers that have pulled out of the government-run markets in the face of mounting losses.

Aetna will exit markets including North Carolina, Pennsylvania and Florida, and keep selling plans on state exchanges only in Iowa, Delaware, Nebraska and Virginia, according to a statement Monday evening. In most areas it’s exiting, Aetna will offer individual coverage outside of the program’s exchanges.

The decision is the latest blow to the Affordable Care Act, which though it has brought coverage to millions, the new markets have proven volatile for some of the largest for-profit insurers. Aetna said earlier this year that it expected to lose $300 million on the plans. UnitedHealth Group Inc. and Humana Inc., which Aetna has agreed to buy for $37 billion, are also pulling out after posting hundreds of millions of dollars of losses.

Aetna’s about-face on the ACA comes less than a month after the U.S. Justice Department sued to block the company’s plan to purchase Humana. The DOJ said the combination would harm competition for private Medicare plans and for ACA health plans.

The dropouts undermine a key promise of the law: multiple insurers would compete for consumers’ business each year, and the power of the market would control costs and raise quality. Instead, the opposite is happening. Rates may jump 24 percent next year and a quarter of U.S. counties could have just one insurer on the exchanges.

Clinton Endorses Biden’s Cancer “Moonshot”

The cancer “moonshot” initiative led by Vice President Joe Biden would continue under a Clinton administration, the Democratic presidential nominee confirmed Aug. 15. Hillary Clinton’s campaign released a statement ahead of a rally with Biden in Scranton, Pa., in which she called for restoring robust funding to the National Institutes of Health, along with “harnessing the power of the private sector.”

While Clinton’s endorsement of an initiative that began this year after President Barack Obama’s final State of the Union address isn’t surprising, the statement marks her first official confirmation that she would continue the initiative to double the rate of progress on cancer treatments and prevention therapies.

Court Blocks Ohio’s Effort to Defund Planned Parenthood

Ohio authorities may not enforce a law designed to prevent Planned Parenthood affiliates’ access to federal funding for nonabortion related activities (Planned Parenthood of Greater Ohio v. Hodges, 2016 BL 262243, S.D. Ohio, No. 1:16-cv-539, 8/12/16).

The U.S. District Court for the Southern District of Ohio Aug. 12 said Ohio Rev. Code § 3701.034 violates the affiliates’ First Amendment free speech rights and 14th Amendment due process rights by conditioning funding for several preventive health-care programs on their abandonment of efforts to promote or provide nontherapeutic abortions. There was no dispute, the court said, that Ohio couldn’t have constitutionally legislated a direct ban on either promoting nontherapeutic abortions or affiliating with an entity that promotes abortions. Such a ban would have violated the First Amendment’s free speech clause.

Instead, Ohio said it would deny funding for non-abortion related programs—like cancer screenings for women, HIV testing and education and measures to reduce infant mortality—based on the recipients’ abortion-related activity. That also violated the unconstitutional conditions doctrine, the court said. The court said the Ohio law also violated the plaintiffs’ right to perform abortions under the 14th Amendment due process clause. The programs affected by the law included tests, treatments, screenings and educational programs unrelated to performing abortions. The law, therefore, prohibited the use of the funding for non-abortion related programs based on the recipients’ exercise of their due process right to perform abortions. The unconstitutional conditions doctrine prohibits that.

The decision is the latest in a string of cases that rejected efforts to defund one of the nation’s largest health-care providers. The Ohio Attorney General is appealing the ruling.

Medical Costs for ACA Enrollees Flat in 2015

Medical costs for people enrolled in Affordable Care Act plans were essentially unchanged in 2015 compared with 2014 even as costs in the broader insurance market continued to rise, the HHS reported Aug. 11. States with the highest enrollment growth saw significant reductions in per-enrollee medical costs, the Department of Health and Human Services said. “These findings suggest a year-over-year improvement in the ACA individual risk pool, with the Marketplace gaining healthier, lower-cost consumers as it grew,” the agency said in a release. As insurers such as UnitedHealth Group, Aetna and Humana have retreated from the ACA marketplaces due to heavy plan losses, the high medical costs for sick enrollees have become a more vexing problem. The Obama administration plans to try to attract more young adults to the marketplaces in the sign-up period for 2017, which runs from Nov. 1 through Jan. 31, 2017.

Drug Discount Dispute Resolution Established by HHS Proposal

Safety-net hospitals and drugmakers would have a new process for resolving drug discount disputes, under a proposed rule issued Aug. 11 for comments. The proposal (RIN:0906-AA90) from the Department of Health and Human Services would establish a binding administrative dispute resolution (ADR) process for certain disputes arising under the 340B program. The HHS said the purpose of the ADR process is to resolve claims by covered entities, such as hospitals, that say they have been overcharged for outpatient drugs by manufacturers. It also would resolve claims by drug manufacturers that a covered entity is using 340B drugs for ineligible patients or receiving duplicate discounts on drugs.

The 340B program requires drug manufacturers to provide outpatient drugs to eligible health-care organizations at significantly reduced prices. Comments on the proposed rule are due Oct. 11. Since 1992—when the program was created—the 340B program has operated under a voluntary dispute resolution process that was rarely used.

Rule Aims to Clarify Calculation of Hospitals’ Uncompensated Care

The federal Medicaid agency proposed clarifications to the treatment of third-party payers in calculating safety-net hospitals’ uncompensated care costs. Disproportionate share, or safety-net, hospitals’ uncompensated care costs may only include those costs for Medicaid-eligible individuals that remain after accounting for payments from Medicare or other third-party payers, a proposed rule (RIN:0938-AS92) published Aug 15 by the Centers for Medicare & Medicaid Services said.

As a result of the proposal, the hospital-specific limit on uncompensated care calculations would reflect only the costs for Medicaid-eligible individuals for which the hospital hasn’t received payment from any source, other than state or local governmental payments for indigent patients, the CMS said. The proposal doesn’t reflect a policy change and the CMS doesn’t expect that the rule “would have significant financial effects on state Medicaid programs,” according to the agency.

State Medicaid programs make disproportionate share hospital (DSH) payments to qualifying hospitals that serve a large number of “low-income patients with special needs,” the agency said. The CMS establishes a yearly DSH allotment for each state that limits the federal government’s spending (or federal financial participation) on total statewide DSH payments. The proposed rule could reduce payments to safety-net hospitals from state Medicaid programs, because the facilities could only calculate uncompensated care costs after first considering payments from Medicare or other third-party payers.

Comments on the proposal (Docket No. CMS-2399-P) are due Sept. 14.

Doctors Press Medicare for Final Rule With EHR Program Changes

Physician groups are pushing regulators to cement proposed changes to the federal EHR program so doctors have more time to prepare for upcoming Medicare reimbursement changes.

Some of the country’s largest industry groups for physicians want the CMS to quickly release a final rule that would shorten the reporting periods and make other changes to the meaningful use program that encourages doctors to adopt electronic health records. The groups are also pushing the agency to delay the start of the proposed Merit-Based Incentive Payment System (MIPS) to give doctors more time to prepare for the new payment system.

For the past three years, doctors have pressed the CMS to give them similar breaks from the reporting requirements of Medicare’s various incentive programs only to be granted last-minute changes in October and December. Doctors’ groups are hoping the Medicare agency will issue final rules sooner this year.

The meaningful use program offers Medicare and Medicaid incentive payments to doctors and hospitals that adopt electronic health records and meet certain reporting requirements. As of June, the program has paid $34.92 billion in incentive payments to nearly 5,000 hospitals and 483,798 health-care providers. Physicians have long claimed that a full-year reporting period gives them no time to prepare for the next year of the program, which typically requires them to upgrade their EHR systems and collect new data about their patients to report to the CMS.

In July, the CMS released the proposed Medicare outpatient hospital payment rule that would allow hospitals and doctors that have previously participated in the meaningful use program to report during any continuous 90-day period within the calendar year on their compliance with meaningful use program requirements. The proposed rule would also eliminate the clinical decisions support and the computerized provider order entry objectives for hospitals participating in the second and third phases of the program.

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