I’m at the 36th Annual Health Law Professors’ Conference, a wonky meeting that’s the highlight of my conference year. I plan to blog some of the highlights each day.
The first plenary on the ACA featured Tim Jost (W&L), Sara Rosenbaum (GW) & Vicki Robinson (OIG).
Jost focused on private market reforms. The Exchanges open on October 1st, with daunting HIT issues as we attempt to enroll millions more Americans. Jost discounted fears about employers dropping coverage, primarily due to the employer mandates and the generous tax subsidies for all employer-based private coverage. As for predictions of “rate shock” in the Exchanges, individual and small group markets, Jost reasons that groups with increased premiums will get more press coverage than those whose premiums will decline. The prototype will be the young, healthy male. But with the elimination of gender discrimination under the ACA, young healthy women should save money [but see the contraception mandate litigation]. Jost also noted the individual clawbacks: the tax subsidies in the Exchanges are paid real-time, based on expected annual income. But of course, many people who will qualify (income between 138 – 400% FPL) don’t have the sort of jobs that allow precise predictions of annual income. The individual clawbacks will retrospectively adjust subsidies and cost-sharing once the actual income is known. That will be quite a shock for poor people who exceeded their expected 2014 income.
Rosenbaum started with the federalism ironies in Medicaid – a program designed as cooperative federalism has driven so much conflict. She discussed Medicaid problems in the “nullification states” after SCOTUS “weaponized” the coercion doctrine. (Long BU Law Review article here) In the months after the NFIB decision, she said, some states talked about “partial expansions” and the Administration didn’t push back until after the election. (Prior TIE coverage here) Now it is clear that NFIB allows states a binary choice to either accept or reject the Title II ACA Medicaid expansion. Rosenbaum fears for the millions of poor people who will not gain coverage in nullification states. Heavy pressure will fall on community health centers and free clinics in those states, largely in the south. Her preferred solution is a federal fallback plan for Medicaid expansion, akin to the federal fallback for the Exchanges.
Robinson led the OIG effort to modify the fraud and abuse laws to the new world of ACOs, particularly the the Medicare Shared Savings Program. She described the “heavy lift” of getting multiple federal agencies to work together to issue consistent ACO guidance, including the IRS, FTC, DOJ, OIG and CMS. (Prior TIE coverage of these rules here and ACOs generally here). She had no updates for how these rules might apply in the commercial market, which is a major concern.