Seek­ing guid­ance

ACA still miss­ing key reg­u­la­tory de­tails

Modern Healthcare - - THE WEEK IN HEALTHCARE - Rich Daly

Some key reg­u­la­tory de­tails re­main unan­swered in the fi­nal months be­fore the Pa­tient Pro­tec­tion and Af­ford­able Care Act’s ma­jor pro­vi­sions launch. Obama ad­min­is­tra­tion of­fi­cials have in­sisted that they have is­sued all of the ma­jor reg­u­la­tions for the 2010 health­care over­haul and are now fo­cused on im­ple­ment­ing the law’s cen­tral pil­lars—state health in­sur­ance ex­changes and ex­panded Med­i­caid cov­er­age—later this year. But health pol­icy ex­perts said they still ex­pect im­por­tant reg­u­la­tions im­ple­ment­ing pro­vi­sions of the law, plus a large amount of so-called sub­reg­u­la­tory guid­ance.

Sam Batkins, di­rec­tor of reg­u­la­tory pol­icy at the con­ser­va­tive Amer­i­can Ac­tion Fo­rum, counts 32 pro­posed rules that re­main to be fi­nal­ized, in­clud­ing IRS rules on Medi­care taxes and re­quire­ments for providers to re­port and re­turn Medi­care over­pay­ments within 60 days.

Other highly an­tic­i­pated reg­u­la­tions still to come this year deal with var­i­ous com­po­nents of the health in­sur­ance mar­ket­places, ex­perts say.

Those new ex­changes are ex­pected to be­gin en­rolling mil­lions of pri­vate in­sur­ance sub­scribers in each state Oct. 1 and start pro­vid­ing cov­er­age in Jan­uary.

Four rules ad­dress­ing var­i­ous as­pects of ex­changes are un­der­go­ing re­view by the White House Of­fice of Man­age­ment and Bud­get—typ­i­cally the fi­nal stage be­fore a rule is is­sued.

Among those reg­u­la­tions is the fi­nal ver­sion of a pro­posed rule pub­lished in the fall of 2011 gov­ern­ing ap­peals by peo­ple de­nied el­i­gi­bil­ity for Med­i­caid cov­er­age and pro­vi­sions on sub­si­dies for ex­change cov­er­age. The fi­nal rule was sub­mit­ted to the OMB for re­view May 13; the law re­quires a fi­nal rule by Jan. 1, 2014.

Those rules on com­po­nents of the ex­changes and the Med­i­caid ex­pan­sion demon­strate the highly in­ter­wo­ven na­ture of the law and its im­ple­ment­ing rules. The rules need to clar­ify the point at which a per­son qual­i­fies for Med­i­caid or sub­si­dized ex­change cov­er­age and whether that can change mul­ti­ple times an­nu­ally, known as churn­ing. Th­ese im­ple­ment­ing rules have taken on greater sig­nif­i­cance since the law did not an­tic­i­pate fac­tors that have com­pli­cated that sit­u­a­tion, such as the Supreme Court’s de­ci­sion to al­low states to choose not to ex­pand Med­i­caid.

“Do you get held in Med­i­caid for the whole year, or do you just keep flip­ping in and out of the sys­tem, which is a ter­ri­ble

“Do you get held in Med­i­caid for the whole year, or do you just keep flip­ping in and out of the sys­tem, which is a ter­ri­ble thing for con­ti­nu­ity-of-care pur­poses.”

—Julie Barnes Ex­ec­u­tive di­rec­tor Break­away Pol­icy Strate­gies

thing for con­ti­nu­ity-of-care pur­poses,” said Julie Barnes, ex­ec­u­tive di­rec­tor of Wash­ing­ton-based con­sul­tancy Break­away Pol­icy Strate­gies.

Other com­po­nents in the law that re­main un­fin­ished, ex­perts say, in­clude fi­nal rules on the em­ployer man­date— which im­poses fi­nan­cial penal­ties on some busi­nesses if any em­ploy­ees seek sub­si­dized cov­er­age on the state ex­change. Pro­posed rules on cov­er­age pro­vided or lim­i­ta­tions and taxes as­sessed when cov­er­age is deemed in­suf­fi­cient were is­sued ear­lier this year.

Like many non­health­care busi­nesses, skilled-nurs­ing fa­cil­i­ties are watch­ing for clar­i­fi­ca­tions on em­ployer re­port­ing pro­vi­sions re­lated to the em­ployer man­date, said Erin Sut­ton, a se­nior di­rec­tor at the Amer­i­can Health Care As­so­ci­a­tion, a trade group

for skilled-nurs­ing fa­cil­i­ties. For in­stance, they are look­ing for clar­i­fi­ca­tion on how em­ploy­ees need to be told about cov­er­age op­tions. Skilled- nurs­ing fa­cil­i­ties are among the health­care providers least likely to of­fer em­ployee health ben­e­fits that meet the cov­er­age stan­dards nec­es­sary to avoid fed­eral penal­ties, ac­cord­ing to health in­dus­try ex­perts.

“It’s hard for em­ploy­ers to in­form em­ploy­ees about cov­er­age op­tions when the ex­changes are not up and run­ning in ev­ery state and it’s not known what plans are go­ing to be of­fered,” said Julie Scott Allen, a govern­ment re­la­tions di­rec­tor for Drinker, Bid­dle & Reath, a law firm that lob­bies on health­care is­sues.

HHS is ex­pected to pro­vide many of the re­main­ing de­tails im­ple­ment­ing ACA statu­tory lan­guage through “guid­ance” that does not fol­low the for­mal rule­mak­ing process. Those less for­mal meth­ods of im­ple­ment­ing statu­tory lan­guage have drawn provider crit­i­cism in the past over con­cerns that they lack a process to re­view and ac­count for un­in­tended ad­verse im­pacts.

“Right now, we are in the land of bul­letins and guid­ance and Q&As that help flesh out what the rule couldn’t have done be­cause we are in a state of flux,” Barnes said.

For ex­am­ple, crit­i­cal de­tails are still awaited on the op­er­a­tion of the fed­eral data-ser­vices hub. That hub will com­bine in­for­ma­tion on each in­sur­ance ex­change ap­pli­cant from dis­parate fed­eral data­bases, and make it avail­able to the state in­sur­ance ex­changes to de­ter­mine el­i­gi­bil­ity for cov­er­age and sub­si­dies. States and in­sur­ers are wait­ing for guid­ance on what in­for­ma­tion the data hub will re­quire, and by when.

“This is the most un­sung part of what needs to hap­pen be­fore the ex­changes are pos­si­ble,” Barnes said.

Ad­di­tional health law-re­lated de­tails will be part of the an­nual in­pa­tient prospec­tive pay­ment sys­tem up­date. Fed­eral of­fi­cials will need to fi­nal­ize a pro­posed rule is­sued April 26 that of­fered changes to the Medi­care dis­pro­por­tion­ate-share hos­pi­tal pay­ment sys­tem and pro­posed cuts based on in­ci­dence of hos­pi­tal-ac­quired con­di­tions.

“With many of th­ese mea­sures, there are ques­tions about how re­li­able they are,” said Daniel Het­tich, a se­nior as­so­ciate at King & Spald­ing, a law firm that lob­bies on health­care is­sues. “It’ll be in­ter­est­ing to see how (HHS) re­sponds to com­ments in the fi­nal rule.”

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