U.S. Capitol Building.

Possibilities and Pitfalls of Health Reform Through Budget Reconciliation

By Nicole Huberfeld

The Biden administration entered office promising health reform. But the evenly-split Senate means ten Republican votes are necessary to move major legislation — cooperation that seems unlikely after years of Republican attempts to repeal and obstruct the Affordable Care Act (ACA).

Still, expanding health insurance coverage may be on the menu through budget reconciliation. A budget reconciliation bill progresses with a simple majority vote: special rules limit debate and make filibuster impossible.

The Biden administration has already navigated budget reconciliation to enact speedy health policy measures in response to the pandemic. Signed March 11, the American Rescue Plan Act of 2021 (ARPA) is a reconciliation bill which, among other things, offers federal money to support states’ and localities’ public health needs; facilitates economic recovery; increases tax subsidies provided through health insurance exchanges to expand affordability; and builds on the ACA and 2020 COVID relief bills by offering Medicaid non-expansion states an enhanced federal match of 5% for each enrollee to encourage expansion and counterbalance costs. The ARPA also addresses determinants of health and health equity, for example by extending the option of maternal Medicaid coverage for a year after the 60-day post-partum period and creating a new child tax credit. Most provisions last no more than two years.

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Grafton, Illinois, USA, June 1, 2019 -Car submerged under flood water in small river town, Grafton, Illinois, as Mississippi River floods roads, businesses and houses. vehicle under water, men in boat

Bail Out Humans

By Christina S. Ho

This past year has sensitized us politically to government’s affirmative obligations, especially the duty to backstop health catastrophes in order to dampen the risks that ordinary people must bear. 

Our government bails out large risks in so many other arenas. Yet we too often fail to backstop the most human risk of all — our vulnerability to suffering and death. 

Throngs of scholars have described our deep tradition of government-sponsored risk mitigation to nurture favored private activities and expectations, and relieve those favored actors from catastrophes beyond what they could be expected to plan for. I have characterized this distinctive political role figuratively as one of “government as reinsurer.”

The federal government provides standard reinsurance for private crop insurers, virtually full risk-assumption for private flood insurance, guarantees for employer pension benefits, robust backstops for bank liquidity risks, FHA mortgage insurance and a federal secondary market to absorb the risks of housing finance.

In these arenas and more, statistically correlated or high-magnitude catastrophic losses are shed onto the state in order to smooth out and shore up the underlying private risk market. We have yet to commit similarly in the health care domain. 

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People protesting with signs that say "healthcare is a human right" and "medicare for all."

A Long View on Health Insurance Reform: The Case for an Employer Public Option

By Allison K. Hoffman

Historically, job-based health insurance coverage was the gold standard. It was broadly available to workers and was comprehensive. It covered the lion’s share of most services someone might need. 

Yet, job-based private health coverage has been in decline. Employers are struggling to maintain plans in the face of escalating health care prices, and indicating the need for government involvement to solve this problem.  

Even before the pandemic, a decreasing share of workers, especially lower wage workers, had health benefits through their jobs. The majority of the currently uninsured are workers, either those whose jobs do not offer them coverage, such as gig workers and part-time workers, or those who are offered coverage but cannot afford their share of the cost. Ironically, some of these workers become ineligible for Affordable Care Act (ACA) marketplace subsidies because they are offered job-based coverage. 

Even for those who have job-based coverage, health benefits have become less generous over time, leaving households vulnerable to unmanageable health care expenses. The average deductible for a worker-only plan has increased 25% over the last five years and 79% over the last ten years. 

To help address these shortcomings and challenges of job-based coverage, the Biden administration should offer employers a Medicare-based public health insurance option for their employee coverage. It would simultaneously offer an out for employers who want it, and start to build the foundation for a simpler, more equitable financing system down the road.

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Biden’s Early Focus: Durable and Attainable Private Insurance

By Zack Buck

Though health policy debates during the 2020 presidential primaries centered around expanding access to public health insurance programs (e.g., “Medicare-for-All”), the focus of the nascent Biden administration has been on making private health insurance more durable, not deconstructing it.

While these changes are likely to make private insurance plans more affordable and attainable, choosing to reinforce private insurance plans puts global systemic reform, the goal of many advocates, further out of reach.

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The Week in Health Law podcast logo twihl.com

John Cogan on ‘The Week in Health Law’ Podcast

By Nicolas Terry

Recorded at the 2019 annual meeting of the Southeastern Association of Law Schools during a panel reviewing the year in health care financing, this episode features a talk by Professor John Cogan from the University of Connecticut School of Law. Professor Cogan focuses his research and teaching on health care organizations and finance, health law and policy, federal health programs, health care fraud and abuse, and health insurance law. He is the co-author of a treatise on Medicare and Medicaid bankruptcy issues, as well as the author of numerous scholarly articles on a range of health insurance topics, including the Affordable Care Act and HIPAA. In this talk Professor Cogan discussed first, Medicaid: including expansion, work requirements, and the latest court decisions; second, Section 1557 and the proposed civil rights regulations; and third, the DeOtte v. Azar case and the resultant contraceptive mandate mess.

The Week in Health Law Podcast from Nicolas Terry is a commuting-length discussion about some of the more thorny issues in health law and policy. Subscribe at Apple Podcasts or Google Play, listen at Stitcher Radio, Spotify, Tunein or Podbean.

Show notes and more are at TWIHL.com. If you have comments, an idea for a show or a topic to discuss you can find me on Twitter @nicolasterry and @WeekInHealthLaw.

Subscribe to TWIHL here!

"I voted" sticker on a finger.

Election Round Up: Medicaid Expansion is an Electoral Winner

With the midterm elections now behind us, I thought it was time to revisit a prior blog post where I discussed the prospects of state Medicaid expansion ballot propositions in Idaho, Utah, and Nebraska. I had predicted that despite the conservative nature of these states, Medicaid expansion would have a good chance of passing due to the program’s popularity.

Indeed, voters in all three states endorsed Medicaid expansion. It received 60 percent support in Idaho and 53 percent in both Utah and Nebraska.

The latter two results were closer than what I was expecting.

In the case of Utah this may because a funding mechanism was explicitly included as part of the ballot proposal. Regardless, this means that roughly 300,000 people will be newly eligible for Medicaid. Not only do may patients stand to benefit, but this could be a huge boon for struggle rural and safety-net hospitals. Read More

The Political Economy of Medicaid Expansion

By Christopher Robertson

Many health law profs have wondered about how state officials can turn down bucketloads of federal money, without suffering the ire of their local constituents.  In states like Arizona, that frustration was spoken most vocally by the local healthcare industry and their employees, who have the most to gain from the expansion of coverage, even if the Medicaid beneficiaries are unlikely to themselves have political clout.

Well, over at the New Yorker, Sam Wang has now compiled the polling data for the gubernatorial races to ask whether “In Swing States, Is Obamacare an Asset?”  This graphic tells the whole story, focusing on states where Republican incumbents who made Medicaid-expansion decisions are now up for re-election:

Chart09-09-updated[1]

Although voters respond to a mix of positions and personalities, and these are only nine states, it is striking that the governors who declined federal money to cover their most vulnerable are also the most vulnerable at the polls.

Is Obama Winning or Losing on Medicaid Expansion Under the Affordable Care Act?

By: Katie Booth

The Obama administration announced in February that it would allow Arkansas to use the federal money intended for Medicaid expansion to buy private health insurance plans for individuals with incomes up to 133% of the federal poverty level. This week, Florida’s senate rejected the Medicaid expansion but left open the possibility that it would try to negotiate a similar deal with the Obama administration. Indiana and Ohio may follow suit.

At first glance, this seems like a political loss for Obama. Several states with Republican governors may now expand healthcare for the poor using a private payer model—the type of model Mitt Romney supported during the 2012 presidential race. Yet Obama’s compromise in Arkansas may ultimately be a win for the president. All of the 14 states that are not participating (as of now) in the Medicaid expansion have republican governors. The private insurer model would allow these governors to save face while ultimately expanding access to healthcare for the poor.

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