Some thoughts on Health Care Legislation 2010 to 2017.

The PP – ACA (PL 111-148), or “Obamacare” had the term “Patient Protection” in it, because of what were perceived by many to be inequities forced on people by insurance companies. These included, but were not limited to:

• Pre-existing condition exclusions
• Rescission (the revocation, cancellation, or repeal of a law, order, or agreement.)
• So Called “Usual, Customary and Reasonable” (UCR) Charges which had no basis in empiric data, which drove payments to physicians and others down.
• Limited benefits (supposed to be corrected by defining “essential health benefits” (sect 1302 (b))[1]

• Driving up profits that were not then used to improve health, which was hopefully addressed by creating and defining a minimal Medical Loss Ratio[2]
• Providing policies that included so much legal language that no one could understand them, and didn’t read them. A component (Section 2715) of the bill, that mandated insurers make policies readable and no more than 4 pages of font that was ≥ 12 points, was aimed at this practice.

In addition, insurance was being unevenly provided. If provision of “Insurance” is to even out exposure to risk, then everyone who may be at risk should be carrying insurance, and they should have it “all the time” not just when an emergency comes about. There were provisions in the bill that were designed to have insurance for health care be just that. These included a clause under the rubric of “shared responsibility” which was also called the “individual mandate” that said that every person in the country must have health insurance. In addition, the bill stated that employers should participate in insurance pools and provide insurance to employees (this could be in place of higher wages, as happened during WWII when wage and price freezes were circumvented by giving health insurance to employees). This was especially irksome, for several reasons, to many people.

If insurance was to pay for care for people who have a health related issue, the debate about whether access to health care is a “right” or a “privilege” has to be entertained and resolved. In addition, the discussion of remuneration of those who provide care has to be agreed upon.

The PP – ACA also had a number of provisions to help improve delivery of health care by encouraging investigations into quality improvement. There were also a series of taxes in the bill, predominantly on industries that made profits in the delivery of care, to help defray the costs.

There are currently two proposals for changing the way that health care is being provided under the current law: The House of Representatives has considered and on May 4, 2017 passed a bill to submit to the Senate called “The American Health Care Act of 2017” (HR 1628)[3] (AHCA). The Senate has received this bill and has then developed a bill, of its own, called “Better Care Reconciliation Act of 2017 (BCRA). The senate bill was released to the public on Thursday June 22; two weeks after the house bill had been given a second reading on June 8. The two proposals are not dissimilar.

The three health care proposals are very different in structure

The two 2017 Bills are remarkably similar. They repeal all of the taxes that were included in the PP-ACA to help defray the costs of implementing components of the bill. They change the ways that people can get help in buying insurance (neither bill explicitly mentions exchanges – the ways that states were supposed to be able to get a viable insurance marketplace) by changing subsidies to tax credits[4]. Both bills penalize any insurance vehicle that contains provisions for abortion (with few meaningful exceptions – “other than any abortion necessary to save the life of the mother or any abortion with respect to a pregnancy that is the result of an act of rape or incest”)

Both bills make major changes in the way that Title XIX of the Social Security Act (Medicaid) is funded and administered. In addition, both bills allow states to apply for waivers from almost all of the mandates (both in Medicaid, and other insurance initiatives) that are included in the Social Security Act[5]. There are several components of both bills that will make Medicaid expansion for patients other than pregnant women, CHIP, over 65 years, or otherwise eligible for Medicare, would be ended. These provisions would cut the number of people eligible for Medicaid and essentially make them uninsured – again.

The house bill has a version of the individual mandate[6], allowing insurers to charge 30% more for people who have let their insurance lapse for more than 63 days. It does, however, give people the option of getting insurance before 2018 or 2019, without being subject to the penalty. The senate on Monday, June 26, included their own version of the individual mandate by would requiring a waiting-period of six months for insurance to become effective, if a person hadn’t had insurance before.

Some sources for helping understand the Code of Federal Regulations Social Security, and the IRS code.

1. Code of Federal Regulations, which is the repository of all of the Laws of the United States http://uscode.house.gov/browse/&edition=prelim: accessed 6/26/17)
2. Social Security Act of 1935 (https://www.ssa.gov/OP_Home/ssact/ acc 6/26/17):
   1. Remember that the SSA is also codified in the CFR under section 42 Public Health and Welfare
      1. Chapter 7 (which calls the “Titles” (eg XVIII, XIX, XX and XXI) Subchapters (with sections of CFR 301 to 1397 MM)
      2. Sections are within a Title of CFR (CFR Title 42 “The Public Health and Welfare” has a total of 160 Chapters and (18501 sections – many of which have subsections designated by letters.
   2. The Preface, which describes the origin and the organization of the Act is helpful. (https://www.ssa.gov/OP_Home/ssact/ssact-preface.htm: accessed 6/26/17)
   3. Volume II provides references to other acts that refer to the SSA
3. Internal Revenue Code in CFR as section 26 (has 11 Subtitles (A-K) and 9834 sections) https://www.irs.gov/tax-professionals/tax-code-regulations-and-official-guidance#irc: accessed 6/26/17

Footnotes:

[1] One might debate whether all of these services should be applied to everybody. Including them all is, however, in the spirit of insurance.

[2] In most of the statements on MLR the minimum of premium dollars spent on care was 85%

[3] The AHCA of 2017 is a modification of a prior bill introduced to the house in 2015, also called the AHCA, but of 2015 (was HR 2653), which began with a statement “To Repeal the Patient Protection and Affordable Care Act, and related reconciliation provisions, to promote patient-centered health care, to provide for the creation of a safe harbor for defendants in medical malpractice actions who demonstrate adherence to clinical practice guidelines and for other purposes.”

[4] Tax credits are an interesting method of providing financial support. There is no statement on how people who don’t pay taxes would get support for buying insurance.

[5] Chapter 7 (Social Security) of Title 42 (Public Health and Welfare) of the Code of Federal Regulations

[6] Sec. 133: Continuous Health Insurance Coverage Incentive