Category Archives: HHS rules on ACA

Serious Brain Illnesses and the ACA: No Relief for the Weary


As a pediatrician whose patients and their families sometimes develop serious mental illnesses, and as a family member and caregiver, I can tell you the word “serious” is a euphemism, a polite understatement.  I have a friend with stage IV cancer who has received life-saving treatment for many years—she is able to work, care for her family, and enjoy her life despite the fatigue and side effects.  If she were to stop treatment she would likely die quickly.  Her illness is serious.  Treated, illnesses like schizophrenia and bipolar with psychosis settle to the level of serious.  They are not really “mental” either, which sounds as if we are speaking about nebulous, abstract, idea-based problems —they are brain illnesses.  Let’s call them what they are.  Untreated, these brain illnesses are not serious—they are devastating, catastrophic, and deadly.   Those who do not die wind up far too often in prisons unprepared to care for them or homeless, living—if one can call it living—under bridges and in doorways. 

 

Brain illness care has long been the red-headed stepchild of medicine—barely funded when required by law, and far too often, not even then.  For decades, advocates have worked towards parity, the equal treatment of brain and other body illnesses by insurance, only to witness seemingly solid legislation morph into a sieve of loopholes.  Anyone who has watched can testify to the creative genius of private insurers, against whom no legal barrier to patient abuse has so far succeeded.  Prohibit annual or lifetime payment caps and they limit the number of visits allowed.  Require inpatient hospital coverage and see new categories like “partial hospitalization” that don’t count.  Require outpatient coverage and get provider networks at payment rates so low hardly any doctors sign up.  Will the Affordable Care Act (ACA) along with the Mental Health Parity and Addiction Equity Act (MHPAEA) of 2008 do any better?  My short answer is “no.”  For the long version, read on.

 

 

Under the recently released final rules for parity, effective for plan years that begin after July 1, 2014, most private insurances (except for grandfathered small group policies) will have to provide some brain illness coverage.  The exact services covered will vary between states, because of the way the Department of Health and Human Services interpreted the ACA.  By making Essential Health Benefits depend on prior insurance offerings in each state, the word “essential” is stripped of any semblance of ordinary meaning and varies when we step over the state line between Alabama and Georgia.

 

The final parity rules removed an earlier stipulation for insurers to use clinically accepted standards of care for brain illness treatment authorization. If a treatment is recommended by national experts and advised by your own doctor, the insurer does not have to use the same guidelines and can deny payment.  Although plans are supposed to use similar methods to develop provider panels for psychiatric and other medical care, the parity rule discussion says disparate results in the composition of those panels don’t prove there is a problem.  So if your plan does not include sufficient psychiatrists on the panel accepting new patients (a common issue) but has plenty of other types of specialists, you may not have grounds to protest if the insurer can figure out an excuse.  If insurers are only providing certain elements of brain illness treatment in order to satisfy the ACA, they don’t also have to meet the full requirements of parity otherwise. 

 

There may be some relief to states and patients for coverage of court-ordered brain illness treatment, because insurances can’t restrict such coverage if they don’t restrict it for other court-ordered medical services.  For example, if a court-ordered blood transfusion for a child would be covered, then services provided during a court-ordered psychiatric hold should be covered as well.  I am uncertain if insurers will be permitted to exclude the entire category of all court-ordered treatments to evade this element—I do not see reference to this in the ACA itself.  If that is an available loophole, we will certainly see it used.

 

If insurers cover a certain type of care for medical illnesses, such as outpatient rehabilitation or residential treatment, they must now also cover it for psychiatric illnesses.  That sounds good on the face of it— funding is greatly needed for day treatment programs and other levels of supervised care.  Unfortunately, the option is still wide open for insurers to deny or limit authorization for such services based on… well, whatever they want to base it on, absent any requirement for using accepted standards of care.  I expect we will have services mainly in theory, denied in practice by some set of arbitrary criteria.

 

In a particularly odd arrangement, insurers that can demonstrate a 2% or more increase in costs during the first year of parity can request exemption from parity the next year, and afterwards a 1% cost rise gets them a one year exemption.  Potentially, subscribers could have brain illness coverage every other year.  If my friend with cancer got her chemotherapy only every other year, what do you suppose would have happened by now?

 

The point-of-service cost-sharing barriers are substantial under the ACA.  For those with lower incomes who don’t qualify for Medicaid and have subsidized plans, a $30 co-pay might as well be $300 if they don’t have it.  A $2000 deductible or out of pocket limit?  Unimaginably out of reach.  People affected by serious brain illness are more likely to have lower incomes and thus likely to forgo necessary care at a lower level of up-front cost.

 

Some with serious brain illnesses who have not been able to get private insurance due to their pre-existing conditions may now get private policies.  Those under 26 can now stay on parent plans—but will these newly covered persons have access to care?  Having an insurance card is not at all the same thing as being able to get treatment.  At the onset of illness, many already had private insurance that failed to meet their needs.  I have seen no improvement at all in access for my privately insured patients to appropriate care for brain illnesses.

 

For long-standing serious brain illnesses, partly because treatment barriers and gaps have contributed to loss of function, public insurance is common—either Medicaid, for those with SSI Disability, or Medicare for those with SSDI.  I do not see the kind of changes in either of these programs that would be needed to prevent care gaps.  The “donut hole” for Medicare prescription coverage is closing, but there remains substantial out of pocket cost.  There is no parity requirement for payment of psychiatrists in Medicare and payment is low compared to other outpatient services.  Consequently, finding a psychiatrist who accepts Medicare isn’t easy.  In my city, the only option is the county Mental Health Center, already overloaded.

 

Medicaid appears to be affected by parity only if it is administered through Managed Care Organizations or Alternative Benefit Plans.  The Medicaid Expansion, in states that adopt it, will add some with brain illnesses who have not been able to get disability benefits.  The main barriers to care for those with Medicaid are funding, generally severely inadequate at the state level, and commitment laws that hinder timely treatment when the patient is sick enough to be unaware of the illness (anosognosia).   When it comes to strokes and heart attacks, we hear “time is tissue”—the rush is on to treat patients urgently, conscious and asking for help or not.  With serious psychosis, just as damaging to brain tissue if untreated, we bizarrely decide the ill person, unable to make rational decisions, does not want help.   Staffing at Mental Health Centers is limited, wait times are lengthy, and necessary community supports are minimal to absent. There is no move towards building a serious brain illness treatment infrastructure in the ACA.  If care is affordable but not available, patients are left behind just the same.

 

Although Medicaid pays for residential care of those with intellectual disabilities, there is an “IMD exclusion” prohibiting federal matching funds for care in a psychiatric hospital.  This has helped cause deteriorating service quality at state hospitals and made it appear cheaper for states to put those with serious brain illness in jail than to hospitalize them.  The ACA includes a “demonstration project” to pay private psychiatric hospitals with Medicaid funds to provide emergency services in some states. Because private hospitals have higher administrative overhead, proportionately less money may be used for actual patient care than in lower overhead public facilities.  The demonstration project funds are not available for public psychiatric hospitals, although the money is public in origin. Why not use those funds to improve state hospital care and coordinated transition of care to communities?

 

Because milder brain illnesses are more common and seem to garner more popular sympathy than serious cases, I am also concerned about wise use of scarce resources. The ACA does nothing to ensure that priority will be given to those most severely affected, both in terms of initiating treatment and maintaining it.  The spectrum of brain illness is broad, just as for other medical illness.  It is being absurdly stretched to include non-illness ordinary frustrations of life so providers can be paid for their preferred “patients.”   

 

I would not begrudge a person with a mild brain illness appropriate treatment any more than I would a person with a mild asthma flare-up.  Mild problems can become serious without good care.  At the same time, I would not leave a person in my waiting room gasping for breath to see one with a head cold.  I would not stop insulin for my patients with diabetes just because they “look good right now” in order to counsel basically healthy people on how to eat more vegetables.  And that is the sort of mindlessness happening in brain illness care right now—priority is given to the worried well.   

 

Although we have no cure for the most devastating brain illnesses, we most certainly do have multiple proven interventions that can, much of the time, bring those affected to the level of the merely seriously ill.  Treatment reduces the risk of relapse and allows many to have meaningful lives in their communities.  Just as with cancer, brain illness can sometimes worsen even during treatment so that the care plan needs to be adjusted—this can only be effective when care is continuous and frequent enough to catch the early signs of trouble.  Each relapse not treated quickly and skillfully may cause cumulative, permanent, unrepairable damage to the brain.  Treatment gaps in a system full of cost and access barriers can mean death. 

 

Any reform of healthcare that fails to address the needs of people with serious brain illnesses, including their critical need for continuous care with no loopholes or gaps, is a sham, a travesty, and a parody of reform.  I am weary of seeing tragic headlines about those we have failed, when I know we already have the knowledge and tools to do better.  My grade for the ACA on brain illness?  Fail.

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Filed under HHS rules on ACA, Medicaid, mental health

Redefining Affordable: The Future of Health Insurance Premiums under the ACA


In a move that goes beyond redefining the word “is”, the IRS has released its final rule on what will be considered “affordable” premiums for families.  Although you will not be on the hook for a tax penalty if the premiums for your entire family exceed 8 % of your income, an increasingly common problem, you will not be eligible to purchase a subsidized plan on the coming Exchanges as long as your individual premium for your employer plan is 9.5% or less of your household income.

 

Do you see where this is going?  Let’s say your employer really doesn’t want to pay the wrist-slap penalty for failing to provide you with an “affordable” insurance option.  So she finds a policy that costs exactly 9.5% of your total household income, which includes your spouse’s two part-time jobs.  You have two children, and your spouse’s jobs don’t include benefits because they are part-time.  Could a policy covering all four of you cost 38% of your income?  I used to have an option for individual or family coverage through my employer, but now there are premiums based on number of persons in my family.  Even those of us with decent incomes are going to be hard-pressed to come up with that money, and remember—this is only the premium.  It does not include the “cost-sharing” of co-pays, deductibles, and non-covered services.

 

For low-paying jobs, where it would be hard to find a policy that meets the criteria of essential health benefits for 9.5% of salary, look to insurers and the feds to get really creative finding loopholes.  Less of your body might be essential than you now imagine.  There are already waivers for so-called “mini-med” insurances until 2014.  Do you really believe the waivers will disappear on schedule?  I’m not holding my breath.  Some sort of redefinition is probably already in the works.

 

If a state refuses to participate in the Medicaid Expansion, your children might still be covered if you are under the poverty line.  Children in families up to 300% of poverty are generally eligible for the SCHIP programs (ALLKids in Alabama).  But what about you and your spouse?  Oh, well, the IRS says.  You don’t have to buy insurance—we won’t penalize you.  You can “keep the coverage you have”, even if it is no coverage.

 

Can you hear me now? As long as private insurers are part of our healthcare system, our health is at risk.  The insurers need to keep our care costs high, so they can rake in their allowed percentages, so there will be little effort to make serious improvements to healthcare that would keep us healthy at less cost—steps like eliminating subsidies for producers of toxic and obesity-promoting foods, getting corporate food out of the school lunch program, repairing the broken FDA, reducing our exposure to environmental poisons, or financing our public health system effectively.

 

Let’s get serious about healthcare reform—we need Medicare for All, now more than ever.  Look at the estimates for taxpayer funding under this system, a pre-paid plan with no co-pays or deductibles.  It’s affordable for ALL of us, no creative re-defining needed.  Medicare for All—everybody in, nobody out.  Look for a chapter of PNHP (Physicians for a National Health Plan), Healthcare Now, or other single payer groups in your area, and find out what you can do to make it happen!  If you are in North Alabama, we’ll be expecting you.

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Filed under HHS rules on ACA

New Rules on Pre-existing Conditions– Take Two


Edited version, revised after comments on Left in Alabama:

HHS has issued their proposed rule for how the changes on guaranteed availability of coverage and rate variability will take place in 2014 [edit– “guaranteed availability” I  initially had misunderstood as “pre-existing conditions” because of John Dingell’s Facebook post talking about the rules that included: “Market Rules” that would prohibit health insurance companies from discriminating against individuals because of a pre-existing or chronic condition, beginning in 2014. For more information regarding this rule, visit http://www.ofr.gov/OFRUpload/OFRData/2012-28428_PI.pdf].  I  plead guilty to following his lead– this rule is NOT about pre-existing conditions, exactly.  It is about whether insurers are required to allow individuals or groups to enroll, and which policies will be required to limit rate variations to age, tobacco use, family size and geographic area. Thanks to a LIA commenter who caught that!  Oddly, the press releases from HHS also put this new rule in terms of pre-existing conditions.

A couple of terms:  “grandfathered” means a plan that was around before 2010 so doesn’t have to meet many of the new rules in the ACA.  It is now very hard to get ungrandfathered—an employer can switch insurance companies completely and as long as the new policy is similar to the old one, it is not new—it is still grandfathered.  I’ll call these plans “old.”

 

A non-grandfathered plan is a “new” plan that has to meet the ACA requirements all around, like preventive care without co-pays.

 

So the original ACA said that in 2014, insurers had to accept people with pre-existing conditions without discrimination, except for “old” individual plans.  Here is the language that  means, to me, that “old” group plans have to play by those rules also, in Section 1251: “The provisions of section 2704 (related to pre-existing condition exclusions) of the Public Health Service Act (as added by this title) shall apply to grandfathered health plans that are group plans for plan years beginning with the first plan year to which such provisions otherwise apply.”  Clear as mud, but section 2704 is the part that says insurers can’t exclude people.

 

The new proposed rule, just issued, says: “Proposed §147.104 would require issuers offering non-grandfathered health insurance
coverage to accept every individual or employer who applies for coverage in the individual or
group market, as applicable, subject to certain exceptions (for example, limits on network
capacity).” In translation, only “new” insurance plans have to offer coverage to all comers (edited).  Even though this wording does not refer to pre-existing conditions, it allows plans to remain available that can deny access for unknown reasons.

It also says that “old” plans are not subject to the new rules restricting rate variability to age, tobacco use, family size and geographic area.  So the old plans, including group plans, are still allowed to base premium rates on health status (and maybe gender? I can’t tell).  This is the problem that has kept some employers from being able to afford coverage for their businesses.

 

That is worrisome (word replacing “huge”, when I understood it to refer to pre-existing conditions).  Old plans can turn individuals or groups down for coverage.  Could they do it, based on awareness of claims data regarding pre-existing conditions, as long as they don’t get caught?  I think it may leave the door open. And that could be the case indefinitely, because HHS keeps adjusting the criteria for becoming “new” so that it is very easy to stay old, forever.  They call it “keeping the plan you have.” Old plans can also continue to charge more based on health conditions in a group.

 

I have re-read the requirements for insurers to participate in the coming Exchanges, and I can’t find any requirement that the plans offered must be “new”. If it is cheaper for insurers or employers to stick with “old” plans, will we see enough new ones on the Exchanges?  And will these “old” plans find ways to deny coverage? Will there be enough “new” small group plans available?

 

There are too many loopholes built into the ACA.  It certainly seems odd to include different guidelines for which insurances must make their product available to all willing parties, and how the rates can vary, as a separate item from prohibiting discrimination based on health status. An insurer can’t have pre-existing condition exclusions, but it can close the door to you when you apply or charge you extra money. This is Obama’s appointee making the administrative rules, so if you don’t like it, better speak up now.

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Filed under HHS rules on ACA

New Rules– Critical Update on Pre-existing Conditions


Note:  this post has been edited:  please see  https://pippaabston.wordpress.com/2012/11/21/new-rules-on-pre-existing-conditions-take-two/ for the edited version. Very quick, unpolished post today, because I have to leave for rounds in a few minutes and just found out about this late last night.  Will be with family on Thanksgiving and no time to get to it, but you might want to send in your comment to Health and Human Services, and it looks like there is a 30 day deadline.

HHS has issued their proposed rule for how the changes on pre-existing conditions will take place in 2014.  Please read it, at least the beginning, because I need help figuring it out.  A couple of terms:  “grandfathered” means a plan that was around before 2010 so doesn’t have to meet many of the new rules in the ACA.  It is now very hard to get ungrandfathered—an employer can switch insurance companies completely and as long as the new policy is similar to the old one, it is not new—it is still grandfathered.  I’ll call these plans “old.”

A non-grandfathered plan is a “new” plan that has to meet the ACA requirements all around, like preventive care without co-pays.

So the original ACA said that in 2014, insurers had to accept people with pre-existing conditions without discrimination, except for “old” individual plans.  Here is then language that  means, to me, that “old” group plans have to play by those rules also, in Section 1251: “The provisions of section 2704 (related to pre-existing condition exclusions) of the Public Health Service Act (as added by this title) shall apply to grandfathered health plans that are group plans for plan years beginning with the first plan year to which such provisions otherwise apply.”  Clear as mud, but section 2704 is the part that says insurers can’t exclude people.  I don’t think I’m the only person who interpreted it this way—here is BCBS of Al describing the incoming changes, and they list the pre-existing condition rules in both columns (page 2).  Of course, the info in the link may change if they apply the new HHS wording.

The new proposed rule, just issued, appears to completely ignore the ACA here.  It says: “Proposed §147.104 would require issuers offering non-grandfathered health insurance
coverage to accept every individual or employer who applies for coverage in the individual or
group market, as applicable, subject to certain exceptions (for example, limits on network
capacity).” In translation, only “new” insurance plans have to play by the pre-existing condition rules.

That is HUGE.  Why?  Because if you work or get hired by an employer who only offers grandfathered plans (like my boss), you will not get the new coverage of pre-existing conditions.  You might get the insurance, but it might not cover, say, your asthma, if you haven’t had continuous large employer coverage.  And that could be the case indefinitely, because HHS keeps adjusting the criteria for becoming “new” so that it is very easy to stay old, forever.  They call it “keeping the plan you have.”

I have re-read the requirements for insurers to participate in the coming Exchanges, and I can’t find any requirement that the plans offered must be “new”.  So people with pre-existing conditions may or may not be able to find a plan on the Exchange or outside of it, in the individual market.  If they can’t, they would be stuck with the high cost high risk pool run by the states.

There are already enough loopholes built into the ACA without HHS blatantly undoing it.  This is Obama’s appointee doing it, so if you don’t like it, better speak up now.  If I have misinterpreted these proposed rules or the ACA, please let me know—it is entirely possible!  The thing is a mess and hard to wrangle with.  Please help me out here—what do you think?

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Filed under Bad solutions for the uninsured, Healthcare reform, HHS rules on ACA