Washington and Health Care Update

Election 2016

There are now less than two weeks until the November 8th election. The final presidential debate was held last Wednesday evening at the University of Nevada in Las Vegas, NV. Both Donald Trump & Hillary Clinton discussed their plans to address immigration, tax policy, the national debt, and foreign conflicts. According to FiveThirtyEight modeling based on current polling, support for Clinton is holding steady at a 6-point lead in national polls. Clinton is projected to receive 341 electoral votes, with Trump receiving 197.

WTO Sides With Chinese in Dispute Over U.S. Targeted Dumping Methods

The World Trade Organization generally sided with China in a dispute regarding U.S. antidumping duties imposed on 13 imported Chinese products. The WTO said the U.S. violated its international trade obligations in using a “targeted dumping methodology,” including zeroing, in original investigations and administrative reviews, according to the text of an Oct. 19 ruling.

“Targeted dumping” involves patterns of export prices that differ significantly among purchasers, regions or periods of time and which could be used to conceal dumping that cannot be appropriately taken into account under the standard “average-to-average” methodology for price comparison. Beijing filed the case in 2013 alleging that the U.S. Commerce Department’s antidumping methodologies were inconsistent with the WTO’s Antidumping Agreement.

The decision is noteworthy in that it marks the second time the WTO has rejected Washington’s use of a so-called “weighted average-to-transaction” and “zeroing” methodologies in its dumping investigations. The U.S. must now determine whether or how it will comply with the WTO decision or face the prospect of billions of dollars’ worth of retaliatory trade tariffs.

Health Care News

Obamacare Sign-Ups to Increase by 1 Million in 2017

Amid intense efforts by the Obama administration to target the uninsured in the U.S. president’s final months in the White House, sign-ups for health plans created under his signature domestic law are expected to rise by about 1 million next year.

The forecast illustrates the administration’s confidence in enrolling more people and keeping those who are covered from dropping out in a challenging year. However, the Obamacare exchanges are still not attracting enough young, healthy, and higher-income individuals who could help spread the health-care costs of the sickest over a bigger group.

About 13.8 million people will pick Affordable Care Act plans during the enrollment period that starts Nov. 1, the government estimated Wednesday, up from 12.7 million a year earlier.

“This is the last open enrollment for this administration,” Health & Human Services Secretary Sylvia Mathews Burwell said in a speech in Washington. “We’re going to make it count.”

2017 could be a particularly tough year to persuade people to sign up, with premiums rising and options narrowing in some markets. Surveys have shown that high costs are a key reason people are not buying plans, even when subsidies help lower premiums to under $100 a month for many individuals.

Passed in 2010, the ACA, among President Barack Obama’s key domestic policy achievements, helped push the number of people without insurance to record lows in the U.S. Still, millions of uninsured have not signed up and the law remains politically divisive. In the presidential race, Democratic candidate Hillary Clinton has called for bolstering subsidies to help more people buy coverage. Donald Trump, her Republican opponent, has said he would repeal Obamacare while working to ensure that people were still able to find health insurance.

The government estimates that a third of the 10.7 million eligible uninsured will pick ACA plans for next year, underscoring the difficulty of reaching those who have been left behind by the law’s gains. Some people are not buying ACA plans because of their cost, according to a Commonwealth Fund study. A separate report from the Kaiser Family Foundation found that about 5.3 million of the 27.2 million who are uninsured might be eligible for financial subsidies to help them buy ACA coverage.

Pa. Hospitals Drop Merger Effort After Court Loss

Two hospitals in Pennsylvania have decided to abandon a planned merger, after a federal appeals court last month granted a preliminary injunction to prevent the merger pending FTC review of the case. The Federal Trade Commission, in an Oct. 17 press statement, said the now-defunct proposed merger between PinnacleHealth System and Penn State Hershey Medical Center would have hurt consumers.

The merger would have joined a group of community hospitals owned by Pinnacle in and around Harrisburg, Pa., with the leading academic medical center and the primary teaching hospital of the Penn State College of Medicine, 14 miles away in Hershey, Pa. The FTC argued throughout the litigation that the merger would have hurt the market for hospital services in Harrisburg. The decision by the hospitals to abandon their merger plans could be considered a major win for the FTC, which only a couple of months ago seemed to be in danger of being forced to reconsider how it evaluated hospital mergers. Before the Third Circuit ruled, the commission had twice suffered defeats in federal trial courts when judges questioned its method of evaluating the geographic market for determining whether a proposed merger would create an anticompetitive hospital services market.

Cancer ‘Moonshot’ to Harness Microsoft’s Computing Power

The White House’s “moonshot” initiative to transform cancer care taps into industry giants from Microsoft and Amazon Web Services to ridesharing services Uber and Lyft, under a plan released Oct. 17. Vice President Joe Biden presented to President Barack Obama the final report of the cancer moonshot task force—an interagency group forming the federal plan to try to achieve a decade’s worth of progress in five years—along with his own personal report. The policy and regulatory changes in the task force report range from new drug approvals to patent reform, the arts, defense research and the environment, said Greg Simon, the executive director of the cancer moonshot task force. Simon also announced a number of private-sector initiatives.

“Today marks a banner day for the cancer moonshot with the release of the task force report,” Simon said. By culminating the work of more than 20 White House Cabinet and subcabinet agencies that have been meeting since February, he said, the report sets “a new standard for what it means to be involved in the fight against cancer.” The report itself said the task force marks the first time this many government agencies are collaborating to “to tackle the challenges along the spectrum of cancer research and care to improve outcomes for patients.”

Biden, who is leading the moonshot initiative, said medical technologies and treatment plans had progressed rapidly, even since his late son Beau was diagnosed with and later succumbed to cancer. “The fundamental thing I’ve come away with is there is a need for a greater sense of urgency because there are available answers now to some cancers and there is enormous opportunity in sharing data,” Biden said at a White House event to release the moonshot reports.

Ditch Obamacare Risk Corridor Suit, House Says

Federal lawmakers trying to avert “a massive giveaway of taxpayer money” said in a proposed brief that insurers are not entitled to recover funds under an Obamacare risk-sharing program (Health Republic Ins. Co. v. United States, Fed. Cl., No. 16-cv-259, proposed brief filed 10/13/16). The House on Oct. 13 filed a proposed friend-of-the-court brief in the U.S. Court of Federal Claims, saying the court should reject the first lawsuit by insurers seeking payments from the federal government under the Affordable Care Act’s risk corridor program.

The government’s failure to pay an alleged $5 billion under one of three ACA safety valve programs has insurers calling foul. The risk corridor program was intended to help insurers over the hump of adding higher-risk members, and the payment failure has been blamed for the demise of numerous insurers, including Consumer Operated and Oriented Plans formed under the ACA. A federal court already shut down the administration’s plan to reimburse insurers for ACA cost-sharing reductions, saying in a decision in another House lawsuit that the lack of a Congressional appropriation made the payments unlawful (93 DTR K-2, 5/13/16). That decision has been appealed.

Feds Expand Health Record Oversight Despite Pushback

The Obama administration moved forward with a final rule expanding federal oversight of electronic health records, despite opposition from the technology industry and Congress. The changes in the final rule (RIN:0955-AA00) allow the Office of the National Coordinator for Health Information Technology to directly review federally certified EHRs and other health information technologies, rather than rely on contractors.

Having greater oversight of federally certified EHRs will allow the agency to ensure that the technology is working properly and will not compromise patients’ safety, Vindell Washington, the national coordinator for health IT, said Oct. 14. “More transparency and accountability in health IT is good for consumers, physicians, and hospitals,” he said.

Some health IT industry observers warned that the ONC is overstepping its authority, echoing concerns by lawmakers made shortly after the agency first proposed the changes. Republican leaders of two congressional committees with health-care program oversight responsibilities challenged whether the ONC had the authority to respond directly to complaints about certified EHR systems in a July letter to the agency. Health IT industry groups have said they are worried the agency is seeking overly broad and ambiguous authority over federally certified EHRs and other health IT.

The ONC has repeatedly defended the rule and its authority to take a more direct role in overseeing its certification program. Currently, a few designated organizations in the private sector—known as ONC-authorized certification bodies (ONC-ACBs)—ensure that the thousands of certified EHRs being used by doctors are working properly. Doctors must use federally certified EHR systems to gain credit for participating in various Medicare payment schemes, including the meaningful use program and the upcoming Merit-based Incentive Payment System.

The final rule was published in the Federal Register Oct. 19.

John Zang Contributed to this report

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