Author: Ann Marie Marciarille

High on my list of urban legends surrounding the Affordable Care Act is the perception that undocumented individuals will be eligible for expanded Medicaid or eligible for subsidized health insurance purchase through the Exchanges. I usually am asked about this pretty early in presentations made to the general public here in Missouri, for those of you keeping track.

My response is that, however you feel about it, undocumented individuals are strangers to the ACA – both in terms of eligibility for expanded Medicaid and in terms of eligibility for subsidized purchases through the Exchanges.  I then point out that documented non-citizens (think green cards) are treated differently, though not  the same as citizens, under the ACA.  Finally, I also point out that some states do use state Medicaid dollars to offer things like emergency Medicaid (restricted scope Medi-Cal) and could use these same funds to extend expansion Medicaid (full-scope Medi-Cal) to the undocumented if they chose.

Well, here comes California's SB-4, proposing just some of that. Income eligible undocumented individuals could be eligible for full-scope Medi-Cal. SB-4 is part of a package of ten pieces of of legislation of interest to California's undocumented. 

Undocumented immigrants are, of course, eligible to obtain driver's licenses in California. They have moved to do so in large numbers, though even that number is expected to triple by the end of 2016. So we know public outreach on these things can produce a powerful response. After all, in September of 2014, 115,000 enrollees were disenrolled from ACA-facilitated health plans because of inability to verify legal immigration status.

What does California currently offer the undocumented? Well, it is up to the counties. That means coverage varies greatly. So, California SB-4 would both standardize and formalize state government funded health insurance for eligible undocumented immigrants. Sounds a little like the goals of the original ACA Medicaid expansion, writ small? it should.

When I discuss the need for younger robust people to buy into health insurance markets, I often point out the irony of working so hard to keep younger robust undocumented immigrants out of our health insurance pools.

Be careful what you ask for — you might get it.

Genny Kenney was in town yesterday talking about "Fifty Years of Medicare and Medicaid: Where Are We Headed?" and I can't stop thinking about attempts to push Medicaid to be more like Medicare.  I would argue that  this has been attempted more by trying to transform Medicaid than by trying to transform Medicare, but it is still interesting to monitor the attempts.

One striking attempt was the ACA Medicaid fee bump offering a two year maximum fee bump to Medicaid primary care providers to Medicare reimbursement levels. Given the incredible variation in Medicaid provider reimbursement rates, this is more of a biggie in some places than others. I'm looking at you California.  

I have written elsewhere about how administrative delays reduced the length of California's experiment with the Medicaid fee bump to at most an 18 month interval. Of course, this is a time interval that may not be able to teach us much of anything anyway.

What is interesting is the number of states that want to continue the experiment. Fifteen states propose to continue the Medicaid fee bump.  As far as I can tell, none of them propose to extend it to specialty care where, as Genny Kenney pointed out, the real bottleneck, in Medicaid access occurs.

This year I showed my health law students the cinema verite documentary "The Waiting Room."  It is hard to forget the scene of the emergency department doctor begging favors on the telephone to obtain a neurology appointment for a  thirty something young man who is weeks post stroke but has yet to be seen anywhere but the ED.

Florida's government is reportedly astonished to receive word that the Medicaid Low Income Pool (LIP) will be going away soon. This, of course, strains credulity in light of the fact that this Florida  Medicaid Section 1115 waiver was renewed for only a one year term last time out and accompanied by the request that Florida seek advice on how to serve its low income population once LIP went away. 

Florida commissioned the study and received the advice that the best response to LIP's sunset would be Medicaid Expansion. Memory is a funny thing.

Now, Florida's Governor Rick Scott threatens CMS with litigation over the "coercive" termination of a an expressly time limited Medicaid Section 1115 waiver.

This seems like a potentially huge gamble on which way the definition of "coercion" will break when applied to voluntary time-limited Section 1115 waivers. When is a pilot project waiver not a pilot project waiver at all but a permanent commitment to a funding stream of overwhelmingly federal Medicaid dollars to a state that, simultaneously, purports to disdain Medicaid and want it all?

 

 

The Blues are funny entities. Every Blue Cross and Blue Shield Association plan pays federal taxes but reaps the benefits of special exemptions as 501(m) entities.  Blue Shield of California is — or, was– also exempt from state income taxes.The California Franchise Tax Board has changed that.

California's Franchise Tax Board does not usually conjure up the image of an "irate taxing body" but they were, apparently, irate enough this summer to revoke Blue Shield of California's state tax exemption. News of the revocation is just seeping out. 

Sadly, the Franchise Tax Board has offered no public rationale for its decision. So, let the speculation begin. NPR wonders if it is related to the behemoth's $4.2 billion in financial reserves or maybe to its modest funding of  its charitable foundation; The Los Angeles Times wonders if it is the power of having Blue Shield of California's Foundation long-time director resign to lead the charge to involuntary conversion to for-profit status; and Nonprofit Quarterly notes that the Franchise Tax Board decision was made on the heels of an in-depth audit.

I follow voluntary nfp to fp conversions in the health care world. They, themselves, are the subject of a lively public policy debate. But an involuntary conversion — now on appeal by Blue Shield of California — is such a fascinating inversion of the same issue, it is important to appreciate the resonance of what is going on here. 

The Supreme Court opinion in Armstrong v. Exceptional Child Center came down on March 31st. The fact that the court held that Medicaid providers may not sue to enforce Medicaid's access provisions (requiring states to set payment levels that are sufficient to attract enough providers to serve the Medicaid beneficiary population) is interesting and important in and of itself to those of us who wonder just how Medicaid expansion is going to work out in "how low can  you go" states like California.

What is also interesting is the the majority has bought into Idaho's argument that even failure to comply with a federal Medicaid condition of participation is not a violation of federal law appropriate for injunctive relief for providers but, rather, amenable to the remedy of an agency-imposed complete loss of federal funding for Medicaid.

In an article in Modern Healthcare, Harris Meyer talks about how the majority's acceptance of the "gun to the head" coercion test in National Federation of Independent Businesses vs. Sebelius does not seem to extend to the same gun to the head argument in Armstrong. Justice Scalia, for the Armstrong  majority, disparages just such a coercion analysis as raised in Justice Sotomayor's  Armstrong dissent.

So, whatever coercion meant in NFIB, it may not mean that all all-or-nothing mechanisms for Medicaid participation are coercive. This case does muddy the waters for those of us wondering if the opinion in King v. Burwell will clarify the coercion doctrine further.

As Harris Meyer notes, that's some case of coercion whiplash theory court watchers are developing.

I'm told most people with whiplash recover in a matter of months, say just about in time for the release of the opinion in King v. Burwell.

If you've seen the film Still Alice, you know that the title character receives her early onset Alzheimer's diagnosis at an appointment at which her neurologist has insisted she bring a loved one.  Alice brings her husband inside the diagnosis and inside her worst fears after keeping it all contained by privately consulting a neurologist for a few months.

Actually, Alice's worst fear was of a brain tumor — a diagnosis she later wishfully prefers to Alzheimer's. In one of the movie's best lines, Alice laments that cancer is more dignified than Alzheimer's. She notes that no one thinks cancer is funny or humorous, whereas the gradual diminishment of self from Alzheimer's can lead to some pretty awful humor, as Alice herself demonstrates with numerous quips about memory loss.  

Still, alternatingly mesmerized by her cool and horrified by it, we watch Alice break the tentative diagnosis to her husband and to her three adult children — each of the children a potential carrier of the early onset Alzheimer's gene. The coolness gene must be hereditary as well — because we witness a telephone call where one of her daughters calls to report she does, in fact, cary the early onset Alzheimer's gene herself, declining her mother's comfort. Yes, this is a scary cool family.

But Alice's neurologist — he who spends copious time explaining her diagnosis to her and then to her husband and he who even seeks out an opportunity to hear Alice speak at an Alzheimer's Association event — is the coolest of all. He seems to pitch it just right: be hopeful until it no longer makes sense to be hopeful and then be pragmatic. And, he is unafraid to act as a reality check.

Well, he must be a bit of an outlier if this week's report on the failure of neurologists or primary care physicians to present the Alzheimer's diagnosis to their patients is accurate.   Of course, the study does not distinguish between the early onset and advanced onset diagnosis — the former likely to present as more of a crisis less likely attributable to an aging brain– so an Alice type might not have been in the study group.

Still, the reasons for failure to disclose diagnosis are remarkable: no time, no billable code, a reluctance to deliver a complex and fatal diagnosis without the certainty highly advanced (or post-mortem) testing that insurance often will not fund can provide, all make it easy to say: "not yet."  And, if you post-pone things often enough, it is easy to arrive at "too late" without having told the single person who, in our legal system, most needs to take action on advance health care directives what they need to know: that they have a fatal diagnosis that may fairly quickly rob them of their capacity to plan in this way.

Interestingly, we never see Alice consult an attorney. Are we to assume that super organized Alice and her high powered husband have all the legal documents in order?

One moment of clarity is shown where Alice takes the first  failed steps toward committing a long-planned suicide and her husband asks her, once the clarity has fled, whether she would like to be done with living. But, even for that, the "not now" has become "too late." He can only eye her appraisingly as if he had not seen the suicide instructions she left for herself in her computer.

 

 

 

 

 

 

 

 

 

 

 

Ah, the physician sustainable growth rate formula — the health care reimbursement and policy gift that keeps on giving. Never implemented, though oft threatened, the SGR stands as a symbol of what power even the discussion of provider reimbursement cuts has for members of Congress and their health care provider constituents.

Since the latest extension/delay in SGR implementation expires very shortly, it is back on the agenda. Sadly, the SGR annual kick-the-can down the road fest does not include much discussion about what reasonable provider reimbursement would look like under Medicare, just a discussion about whether finally implementing the oft-delayed SGR cuts would be fair to providers.

Today, Modern HealthCare Reports that another kick-the-can down the road provision — pending DISH cuts– is in the bargaining mix for SGR:

Finally, the House deal would make a couple of changes to cuts to the Disproportionate Share Hospital program that were part of the Affordable Care Act. For starters, it would delay those cuts by another year, pushing them back to fiscal year 2016.

Continuous delay in implementing reasoned cuts in Medicare and Medicaid reimbursement and subsidization, rolled over into seemingly unreasonable aggregated cuts, casts Congress as the rescuers of providers — a pretty valuable role to play indeed.

It was Justice Alito who, at oral argument in King v. Burwell, raised the issue of ruling for the petitioners while  possibly adding a stay to the mandate in order to avoid as much dislocation in insurance markets as possible.  The six months seems to be driven by the needs of the exchanges (where products to be sold through the exchanges typically need submission and approval well ahead of their sell-by dates) and by the precedent in the Northern Pipeline case.

In Northern Pipeline, the Supreme Court both trimmed the sales of the authority of the federal bankruptcy court system and stayed its mandate for about six months in order to give Congress time to address the inevitable chaos surrounding pending bankruptcy matter and diminished bankruptcy court authority.  

The interesting thing about the Northern Pipeline approach is that Congress was required to act fairly speedily, though on a matter overwhelmingly within its control — the appropriate scope of authority of U.S. bankruptcy courts interpreted under the limitations of Article III.

Here, we could toss the matter back to Congress but on a matter not overwhelmingly in their control — whether the states should establish their own exchanges or participate in the federal exchange.  The only way Justice Alito's point makes sense is that if the argument that Congress intended the inverse — to require states to establish exchanges.

The ACA represents cooperative federalism — flexible federalism, if you will. Reading the statute as the explicit intent of Congress to, by subterfuge and through a tax provision, usurp the power of the states to decide between a state operated exchange and a federally operated exchange wrenches the statute from its moorings by insisting an inverted reading is a clear reading.

Justice Kagan nailed it when she noted that Michael Carvin, on behalf of Petitioners in King v. Burwell, was singing a different tune when she noted that at his last visit he had maintained (on behalf of a different client and in another case called NFIB v. Sebelius) that the insurance Exchanges cannot operate as Congress intended without subsidies. After a little uneasy laughter, he recouped to maintain that Congress intended all the benefits of Exchanges even without subsidies, even though conceding that one of the wonders of subsidy-less exchanges is that they might have nothing for sale and no buyers to purchase inside them. 

Michael Carvin sounded like he had the certainty of his convictions that Congress intended it all to unfold like this but Justices Kagan, Sotomayor, and Ginsburg (seriatum) sounded skeptical. Certainly a foolish consistency may be the hobgoblin of a little mind but a complete reversal of narrative on how insurance markets work takes  appalling ignorance of how health insurance markets work or some guile or, now that I think of it, maybe both.

Justice Breyer staked his position on a textualist vs. a contextualist vs.a hyper-textualist reading of the Affordable Care Act pretty early in oral argument for King v. Burwell, yesterday. He observed: "this statute is like the tax code more than it's like the Constitution," meaning that there are definitions within definitions and interlocking provisions to be parsed before you can say you have read the statute in any meaningful way — a very lawyerly observation indeed.

The significance of this utterance was quickly made clear by his reading of ACA section 1311 and section 1321. But the observation also resonated throughout the entire oral argument as alternative readings of the statutory language proliferated.

What place does hyper-textualism have in statutory interpretation? Once it has staked its place in Constitutional interpretation, should it bleed over into statutory interpretation? And, if it does, what other complex pieces of legislation — far from the ACA — will also be found to be problematic? There's a reason so many amicus curiae briefs were filed in the case that focused on non-health care law concerns.

This the first in a series of posts commenting on yesterday's oral argument in King v. Burwell. Next up: Was That What You Said About Federal Coercion of the States Last Time You Were Here?