Government seeks en banc rehearing in Halbig

Today the government moved for en banc rehearing in Halbig, as expected.  (HT: Rachana Dixit Pradhan @ insidehealthpolicy.com.)  I have not had the chance to review the petition but thought I would share it.  (For those looking to brush up on some of the blog debate on the case before reading, see here and here.  For more details on the en banc process see my earlier post here.)

The Government argues that rehearing en banc is warranted because the “disruption threatened” by Halbig makes the case one with exceptional importance.  One interesting bit did catch my eye, in light of that assertion.  It is footnote 7, which offers the Government’s view on the impact of the ruling in Halbig, and might be taken as sort of a cf.:

“The panel majority suggested that its ruling would apply nationwide, Op. 41-42, but it did not squarely hold as much or address the many reasons why relief should not extend beyond the named plaintiffs. The panel’s decision does not control in other circuits, just as the Fourth Circuit’s King decision does not control here.”

Here is the petition: Halbig En Banc Petition

How En Banc Review Would Work in Halbig

This morning the D.C. Circuit ruled that the ACA “unambiguously restricts the section 36B subsidy to insurance purchased on Exchanges “established by the State.”  (See opinion here.)  In other words, the court ruled that the subsidies that make insurance on federally-operated exchanges affordable are illegal.

In the news and blog coverage this has already received, the possibility of this decision being reversed “en banc” has been mentioned.  (See here, here, and here for news, here and here for blogs.  For other blog reading on the opinion itself, see here and here.)  Having written a bit elsewhere about the logistics of the DC Circuit (see here), I thought I would chime in with specifics about exactly how the decision whether to rehear the case en banc, and en banc rehearing, would work.

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Update and Thoughts on Lawsuit Over Medicare Hearing Backlog

Several months ago, I promised to post my thoughts on the viability of the American Hospital Association’s threatened lawsuit against the Secretary of Health and Human Services challenging the growing backlog of coverage appeals.  (See my post here).  That issue has become timely, because the AHA and several providers filed suit in May in the District of Columbia, and a few days ago filed a motion for summary judgment.   (See here).  There has been some coverage of the suit.  (See here and here.)  In short, their argument is that the statute says that a hearing must be held in 90 days and Medicare officials admit that the plaintiffs will not get a hearing for years, so therefore the court should order “mandamus,” forcing compliance with the 90 day deadline.

When I was in practice before moving to academia, I represented the Secretary in cases like this, so keep in mind my view might be biased.  But the government’s response to the complaint is due (by my calculation) Monday, July 28, so I wanted to offer my quick reactions about the case and what sort of response we might hear from the government.  I’ve just read over the AHA’s motion for summary judgment and I think that in a case like this, with an admitted violation of a statutory requirement, you have to start with the presumption that things could go bad for the government.  But with that said, I don’t think that the government’s case is as gloomy as it might at first appear, so this could be an interesting case to watch going forward.

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Medicare Coverage for Sex Change Surgery: How We Got Here

As mentioned in co-blogger Matthew Lawrence‘s prior posts (here) and (here), Medicare’s Departmental Appeals Board (DAB) recently vacated a decades-old National Coverage Determination (NCD) precluding coverage for sex change therapy.  That opens the door for Medicare coverage for sex change therapy, but does not guarantee coverage.

In this second blog of a two-part post, we will discuss how we got here: the somewhat unique process taken by the Centers for Medicare & Medicare Services (CMS) to invalidate its old coverage decision.

The decision has a somewhat odd procedural history.  On the morning of March 29, 2013, the CMS announced that it was reconsidering the NCD through the formal process for doing so, and sought public comment on what it should do.  (See enthusiastic coverage here.)  The statutory, public process for reconsideration of an NCD includes the opportunity for comment and so on, analogous to notice and comment rulemaking.  And the ultimate decision is subject to judicial review.  (See here for more on the NCD process.)  The NCD reconsideration process could have not only vacated the old standard, but offered specific standards to govern coverage across claimants (and thereby avoided some of the limbo discussed in our last post).

But on the night of March 29, 2013, the CMS rescinded its call for public comment, saying that it would instead allow a “just filed” appeal challenging the NCD before the DAB to proceed.  (See here.)  The DAB process is more adversarial and pits a single beneficiary challenging CMS policy in his or her case against the CMS.  (Although there are opportunities for amici to participate.  In this case, six amici participated, and all of them argued that the ban was unlawful.)  The CMS went on to decline to defend the policy, which made the ultimate DAB decision vacating the (undefended) policy unsurprising.

We can’t say why the CMS chose to rescind the reconsideration process rather than push for the individual appeal before the DAB to be held in abeyance pending the outcome of the reconsideration.  (In federal court, the doctrine of “ripeness” would have made the pendency of the NCD reconsideration grounds for dismissal of the individual appeal.)  And for transgender persons seeking coverage, the process by which their cause was furthered is surely of little moment.  But we can’t help but note that, for better or worse, proceeding through the DAB rather than the formal NCD reconsideration process meant less public attention on the proceeding, and less opportunity for comment by interested groups.

Medicare Coverage for Sex Change Therapy: What’s Next

By Matthew Lawrence and Elizabeth Guo

Last month Medicare’s policy on coverage for sex change therapy changed somewhat. (See Matt’s earlier post here.) Specifically, Medicare’s Departmental Appeals Board invalidated the long-standing National Coverage Determination that dubbed sex change therapy to be non-covered, per se.

Co-blogger Elizabeth Guo and I have done some further digging on this issue and put together two posts answering some questions left open by Medicare’s decision and the news coverage surrounding it.  In this post we discuss next steps: what the change in coverage policy means for Medicare beneficiaries who want coverage for sex change therapy, and what, if any, additional developments are likely to follow.  In a companion post, we will be discussing the somewhat unusual process that was used to make this policy change.

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Medicare No Longer Excludes Coverage for Sex Change Surgery

Yesterday, Medicare’s Departmental Appeals Board set aside a thirty-year-old National Coverage Determination excluding Medicare coverage for sex change surgery.  As a result, Medicare beneficiaries may now seek coverage for sex change surgery, though the ruling does not make such coverage automatic; it only lifts the blanket national exclusion.  Regional and case-by-case determinations that such surgery is not “medically necessary” could still apply.  For news coverage, see here, here, and here.

The decision is not entirely surprising, Medicare had already in December reopened consideration of the National Coverage Determination precluding coverage.  One question to watch is whether this decision, and the changed Medicare policy that ultimately results from it, winds up furthering the case for coverage in private insurance.  There is an unmistakable trend in this area toward more coverage.  Connecticut recently mandated coverage for many plans, and California and Oregon expanded coverage last year.  And let’s not forget prison, in the First Circuit, at least, the refusal to provide sex change surgery to Michael Kosilek that doctors deemed to be medically necessary was ruled “cruel and unusual punishment.”  (Coverage in the Globe here.)

 

Wait Times in the News in Canada

At the same time that wait times at VA hospitals have been in the news here in the U.S., a recent report has put healthcare queues in the news in Canada.  Specifically, a recent report from the Fraser Institute (a research institute that I’ve seen described as “conservative” and “pro-free market“) concluded that 44,723 women in Canada died between 1993 and 2009 due to increased wait times–or 2.5% of all female deaths during that period.  One week of delay was equated with 3 extra deaths per 100,000.  That surprising result led to a good bit of coverage, which is how it came across my desk (thanks to a google news search).  (See here, here, and here.)  But I have to admit I am a little bit skeptical.

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The Alexis Shapiro Case: Divergent Perspectives on Coverage Decisionmaking

Alexis Shapiro is a 12 year old girl who started gaining weight uncontrollably due to a rare condition caused by damage to her brain during the removal of a brain tumor.  Her and her parents’ struggle to get her gastric bypass surgery to curb the weight loss made national news for much of the winter in several outlets.  Happily, in March she had the surgery and she now appears to be doing well.  A good outcome, but boy was the process by which we got here a painful one, largely because the insurer understood the coverage decisionmaking process differently than the rest of us.  Here’s a timeline, and some reflections: Read More

Doc Fix Likely to Delay Review of Inpatient Hospital Admissions

Every year, in order to prevent a statutorily-triggered decrease in physician reimbursements under Medicare, Congress must adjust the statutorily-prescribed fee schedule.  This is known as the “doc fix.”  The American Medical Association, for what it is worth, has lobbied for a permanent doc fix, but that has not happened yet.

This year’s automatic pay cut was going to be 24%, and for a moment a temporary fix was in doubt because of bipartisan support for a permanent fix.  But thanks to some procedural maneuvering yesterday, it looks like a temporary doc fix is through the house, at least.  (See coverage in Politico here and Washington Post here.  And just for fun, see a show about getting things through the house with procedural maneuvering here.)

In addition to the doc fix, a provision included in the House bill would forbid the Department of Health and Human Services from conducting post-payment review through Recovery Audit Contractors of inpatient hospital admission until March 31, 2015.  This will stop for at least a year a review program that, in its last full year of operation, returned to the Medicare trust fund (and took away from hospitals) billions of dollars.  (See commentary condemning the delay here and commentary criticizing the Recovery Audit Contractor program here.) It’s a notable development and if passed will kick the can down the road a short ways for Medicare to decide how it wants to handle utilization review in this area.

News from OMHA Appellants Forum: Statistical Sampling Coming, Backlog Growing

Yesterday the HHS Office of Medicare Hearings and Appeals (OMHA) held a forum for appellants affected by its decision, which I blogged about last month, to hold off on assigning incoming appeals to ALJs while they work to clear a large backlog.  I was able to go, and enjoyed every minute.  This issue has received its share of attention in the news (Washington Post here, National Review online here), as well as controversy (see here and here), but I have not yet seen an article discussing some of the policy developments that came out of yesterday’s forum.  So I am going to play journalist for a minute, rather than academic, and share yesterday’s developments.  There were a lot of them: Read More