Community Health Needs Assessments

Senate floor activity has made this the ACA’s biggest news week not involving Justice Roberts, but whatever news you have read, rest assured that it wasn’t really that simple.  Let us preach on it.

Shortly after noon EDT on July 25, Senator McConnell announced a vote on a motion to proceed to debate the National Defense Authorization Act (H.R. 2810), which actually proved to be a vote on a motion to proceed to debate the House-passed American Health Care Act, H.R. 1628.  With the Vice President providing the tie-breaking vote, that motion passed and debate commenced.

Shortly thereafter, Senator Cruz (R-Texas) offered what’s been called a “skinny plan” amendment that would allow sellers of ACA-compliant plans to sell cheaper alternatives lacking some of the coverages mandated by the ACA.  However, since that amendment, standing alone, would not be filibuster-proof, Senator Cruz needed a waiver of the related budget reconciliation rules.  The motion to waive those rules needed 67 votes, but got just 43.  The roll call showed nine Republicans voting with all Democrats to deny the waiver.

Senator Donnelly (D-Indiana) then moved to send H.R. 1628 back to the Senate Finance Committee (not the Budget Committee) with Medicaid-protective instructions.  The Senate recessed until 9:30 am EDT July 26, then to resume debate, with a vote on the Donnelly motion set for 11:30 am July 26.

This would be the most edgy health care vote taken since March 2010.  Should Senator Donnelly succeed, Democrats would keep the bill alive, at the risk that committee Republicans might get their act together and come up with something that could attract 60 votes later.  Don’t laugh.  It could happen.  Old dogs can and do learn new tricks.  By defeating the motion, Republicans would tee-up a reconciliation rules vote on something yet unseen that might fall short of even 50 votes, thus wasting a one-shot, filibuster-proof process that could have been used to pass tax reform or infrastructure spending, or both.  Indeed, that specter might have motivated some of the nine votes against the Cruz amendment rules waiver.

We watched every minute of hours of persistent, partisan hyperbole that commenced as scheduled on Wednesday morning.  For clarity, consistency and calm reason, the remarks of Senator Rand Paul (R-Kentucky) stood out, except that he was lauding the bill as he would amend it, stripping all the “replace” and leaving only the “repeal.”  At 12:13 pm, Senator Mike Enzi (R-Wyoming) successfully sought to waive a quorum call and to delay the scheduled 11:30 vote until 3:30 EDT, then debate resumed.  The future of healthcare was earnestly guaranteed to be Utopian or Hellish, depending on how fellow Senators voted. Would that Mark Twain, H.L. Mencken, and P.J. O’Rourke had live-tweeted it.

At 12:50 pm, Senator Thune (R-South Dakota) hopefully forecast that keeping the bill on the floor for amendment would lead to final passage … days later.  In a lucid interval from 1:07 until 1:20 pm, Senator Donnelly tried to redirect the debate to the motion actually before the chamber but he, too, succumbed to the tragedian temptation and the next speaker (Senator Chris Van Hollen, D-Maryland) reviled the “nasty DNA” of all Republican “wealth care” proposals, urging Senators to “kill the bill, don’t kill us.”  Nothing is more common than regression to the mean.

Beginning about 2:00 pm, Senator Cornyn (R-Texas) first turned the discussion to the specifics of H.R. 1628 but then returned to the ACA’s evils, Democrat “single payer” desires and associated, asserted motives for obstruction.  Senator Shaheen (D-New Hampshire) responded with an offer of bipartisanship, in the future, with regard to some unspecified but “common sense” solution, if Republicans would first surrender their “harsh, unsustainable” ideas.  Senator Durbin (D-Illinois) made an eloquent appeal for a return to “regular order,” reading from the recent floor speech given by Sen. McCain (R-Arizona).  But, starting at the bottom of the hour, Senator Wyden (D-Oregon) raced back to the bottom, targeting President Trump and “Trumpcare.”  Not to be outdone, Senator Blumenthal (D-Connecticut) then called H.R. 1628 a “shameful, deceitful mockery of democracy,” before closing with a call for mutual respect and civility.  That took us to 2:42 pm, when your humble correspondent mumbled, semi-consciously, “Sharknado, take me now.”

Senator Johnson (R-Wisconsin) rose to offer amendments, one of which would require members of Congress to obtain ACA-compliant health insurance through ACA exchanges.  Each amendment related to the text of H.R. 1628, not to the motion being debated.  Senator Enzi took the floor again at 3:05.  He reviewed how the same partisan reconciliation process was used to pass the ACA in 2010, how many material changes were made by the prior Administration’s “executive actions,” and how premiums soon will “surge” if Congress fails to make other needed changes now. Again, nothing about Senator  Donnelly’s pending motion.  After a quarter hour of muted-mic floor silence, Senator Strange (R-Alabama) made a short plea for consensus opposition to tax-funded abortions.

Fortunately, all things must come to an end, as this seemed to do, starting with a quorum call at 3:32, followed by a roll call vote … on Senator Paul’s amendment, which was defeated, 55 – 45.  Starting at 4:14 pm, the Clerk finally called the roll for the vote on Senator Donnelly’s motion to recommit H.R. 1628 to the Finance Committee.  On that one, Republicans stuck together and prevailed, 52 – 48.  Game on.

You thought we were done for the day?  Rookie.  Seconds after the Donnelly motion’s defeat, Senator Casey (D-Pennsylvania) moved to send H.R. 1628 back to the Finance Committee with instructions to protect in the bill all those protected by the Americans with Disabilities Act, using in his speech an enlarged photo of a disabled constituent and accusing “obscene,” “repeal and decimate” Republicans of seeking to institutionalize people with disabilities.  Because, apparently, when “they” take the low road, “we” tunnel.

Senator Cassidy (R-Louisiana), like Rand Paul a physician,  ignored that bait and added a new Republican talking point: 37% of all ACA Medicaid expansion funds have been spent in just three states – California, Massachusetts and New York.  He then announced a forthcoming “Graham – Cassidy Amendment” to spread that wealth around.  In the best WWF tradition, Senator Cassidy then tagged Senator Graham (R-South Carolina), who used foam-core charts and an easel to explain that “we’re leaving the taxes on wealthier Americans in place,” in order to have the funds to convert Medicaid to state block grants boosting underfunded states without excessive cuts to overfunded states.  West Virginia, he said, would get a 43% Medicaid raise.  Montana Medicaid funding would double.   There was no ad hominem argument, no name calling – just observations and proposed solutions.  Apparently filling time, Senator Inhofe (R-Oklahoma) took the floor for a few minutes to praise President Trump and “my hero Jeff Sessions.”  Senator Enzi then announced that the next votes would be on the Heller Amendment (not yet described) and the Casey motion.

Senator Carper (D-Delaware) spoke at length on the recent history of federally-funded health care, noting that the Heritage Foundation originally conceived several solutions adopted by the ACA, including health insurance exchanges, as an alternative to the single-payer system proposed by Hillary Clinton in 1992-93.  “Romneycare” was prominently mentioned. If Republicans winced, they weren’t on camera.

After two more Democrats denounced “Trumpcare” and the vote-a-rama process, Senator Heller (R-Nevada) was recognized to tout the Heller Amendment.  However, he discussed only the desirability of Medicaid expansion protection, offering no details of his proposal.

Senator Duckworth (D-Illinois) then related a sympathetic story about a quadriplegic constituent and accused Republicans and President Trump of “threatening her life.”

Senator Casey rose again to try again to explain why ACA Medicaid expansion is needed to protect the rights created by the ADA, calling the Heller Amendment mere “sentimentality,” without any binding effect.

At 6:10 pm EDT, the Clerk began to call the roll on Senator Casey’s motion to recommit H.R. 1628 to the Finance Committee.  Republicans prevailed, 51-48, whereupon Senator Heller summarized his amendment, expressing the sense of the Senate that the bill is not intended to reduce Medicaid eligibility, benefits or coverage.  Senator Sanders (D-Vermont) interposed a procedural objection and Senator Heller sought a waiver, just as Senator Cruz had done, but won only 10 votes.

At 7:10 pm, Senator McConnell called-up an amendment proposed by Senator Daines (R-Montana).  Senator Schumer (D-New York) then announced that Democrats would offer no further amendment unless and until Republicans put on the floor a final bill offered for passage.

On the heels of that ultimatum, Senator Reed (D-Rhode Island) renewed the bipartisan cooperation offer made earlier by Senator Shaheen, then yielded the floor to Senator Franken (D-Minnesota), who decried the Republicans’ “reckless, irresponsible” plan to “gut Medicaid,” so as to deprive a named, autistic child of the “therapy he needs to thrive.”  Other examples followed.  Republican health care philosophy, he said, is “survival of the fittest.”  In closing, he urged his colleagues to “stand up to the lies.”

Following Senator Franken, we were treated to a speech by Senator Whitehouse (D-Rhode Island) on the merits of a carbon tax.

Finally, just before 8:00 pm, Senator Enzi announced that debate on H.R. 1628 would resume at 10:00 am EDT July 27, with a vote on the Daines amendment set for 2:15 pm.  Who knew health care could be so complicated?

Nearly three years ago, having spent hundreds of hours immersed in ACA minutiae, we anticipated that clients would not react well to fees for services that consisted principally of telling them that they had asked the wrong question. So we decided, against tradition and much conventional wisdom, to sink lots of unpaid partner time into this education project. A casual reader of this blog should learn basic ACA terms and concepts, so that he or she can converse effectively with advisors. A regular reader should be able to identify, during such a conversation, a purported ACA expert who’s a poseur. Sadly, they abound. A colleague should find this a thought-provoking reference to ACA rules and guidance documents. Those are our goals.

Substitute nothing you read here for legal or other professional advice about any specific situation. ACA rules and sub-regulatory guidance change frequently and whimsically. Occasionally, the three main enforcement agencies (DOL, HHS, IRS) disagree. Sometimes, they publish a new rule unaware of a related, existing rule. Part of our service to you is to alert you to what we see coming. We usually have guessed right, but we often are guessing. And of course, apparently insignificant factual details can turn out to be determinative. If you regard this blog as cheap – i.e., free – legal advice, you’re rolling the dice at your own risk and the risk might be far bigger than you realize.

Finally, we invite constructive comments, including reasoned criticism, but not rants. We delete hissy-fits and block commenters who seem to be unable to comment otherwise. That goes triple for political hyperbole. Sometimes, we must explain political realities in order to explain a regulatory reality, but we try to be objective. You should, too.

Recently, we have received requests to re-post prior articles on the 90-day waiting period, the employer mandate final rules (supplemented here, here, here and here), and our pop quiz for ACA consultants.  As we approach our 100th article, some readers apparently find the scroll-down browsing process tedious.  So do we.  Here are two other ways to find the articles that most interest you.

You may search by “Tags” or by search terms.  We have attached all our present “Tags” to this article, appearing just under the author’s name, so that you may see your options.  Click any Tag and the server will show you a list of all articles similarly tagged.  Or, enter your search term(s) in the “Search” box, in the green bar above and to the right of the article, just above “ABOUT THIS BLOG.”  The server then will show you a list of articles that contain your search term(s).

We genuinely seek to help employers, providers, insurers and brokers understand ACA compliance issues, but please remember that the articles posted on this site are not legal advice and should not be substituted for legal advice.  They are offered as educational introductions to the subjects addressed.  ACA legal advice should be obtained confidentially from a lawyer who knows the ACA and who knows all your relevant facts.

On January 29, 2014, the IRS updated its list of priority projects for the period ending July 1, 2014.  Though expressly disclaiming any promise to compete any listed project by any certain date, the IRS included among its unfinished priorities these much-needed ACA rules and guidance documents.

  • Regulations amending §1.419A-2T relating to collectively-bargained welfare benefit funds.
  • Regulations under §4980G on the interaction of §4980G and §125 with respect to comparable employer contributions to employees’ HSAs.
  • Final regulations on shared responsibility for employers regarding health coverage under §4980H, as added by §1513 of the ACA. Proposed regulations were published on January 2, 2013.
  • Final regulations on the annual fee on branded prescription drug manufacturers and importers under §9008 of the ACA. Temporary and proposed regulations were published on August 8, 2011.
  • Final regulations under §§501(r) and 6033 on additional requirements for charitable hospitals as added by §9007 of the ACA. Proposed regulations were published on June 26, 2012 and April 5, 2013.
  • Regulations under §36B, as added by §1401 of the ACA, regarding minimum value of eligible employer-sponsored coverage and other provisions relating to the health insurance premium tax credit. Proposed regulations were published on May 3, 2013.
  • Final regulations under §36B, as added by §1401 of the ACA, regarding information reporting by Affordable Insurance Exchanges. Proposed regulations were published on July 2, 2013.

The § 4980H (aka “employer mandate”) final rules have been postponed repeatedly.  Though it’s good to know that the IRS is hard at work on them, there is no guarantee that we will see these badly needed rules soon.

What’s missing?  Perhaps most importantly, rules on fully-insured plan discrimination favoring the highly compensated.  Reporters were told several times in the last month that these rules are being delayed again, in order to reconcile them with a re-draft of existing rules prohibiting such discrimination by self-insured plans.  Even longer overdue are rules implementing the automatic enrollment mandate for large employers, but the Department of Labor has that project.

What Is the Opportunity?

Medicaid DHS payments to hospitals, reflecting their uncompensated care burdens, exceeded $300,000,000 in 2011 in Alabama.  They topped $200,000,000 in Florida, $250,000,000 in Georgia and $150,000,000 in Mississippi. Much uncompensated care is attributable to patients with household incomes just a bit too high for Medicaid eligibility.  Many of those households had no option to accept affordable, job-based coverage.  In part because the IRS has delayed until 2015 enforcement of the Affordable Care Act mandate that employers provide such coverage to their full time employees, this situation is likely to persist in 2014, when CMS will begin to reduce associated DSH payments, even in states that have rejected the government’s offer to fund most of the expense of expanding Medicaid eligibility to households with incomes up to 138% of the Federal Poverty Level (“FPL”).  But many such patients will be able to obtain guaranteed issue, individual health insurance policies through the new Affordable Care Act Exchanges.  Those with household incomes under 400% of the FPL will be eligible for federal premium and cost sharing subsidies to facilitate those purchases.  For a user-friendly online estimator, see http://kff.org/interactive/subsidy-calculator.  It forecasts that two uninsured, non-smoking parents with one child, having an annual household income of $25,000 (128% of FPL), after buying a $662.75 per month silver plan, will pay a monthly premium of just $41.67 (a 94% subsidy), with maximum out of pocket costs of $4,500.

Most such purchases are expected to be made online and may be made when the patient seeks care, assisted by a provider employee or contractor.  Insurance brokers, third party plan administrators and others with benefits administration experience are preparing to provide this service, but hospital billing personnel should be able to handle it with minimal training.

When Will This Opportunity Be Available?

October 1, 2013 – March 31, 2014 will be the first open enrollment period for individual health insurance purchases through the Federally Facilitated Exchange serving Alabama, Florida, Georgia and Mississippi.  Issuers of Exchange-listed policies must insure all applicants, regardless of health status, without exclusion of pre-existing conditions, on a modified community rating basis.

After this open enrollment period closes for calendar year 2014 coverage, certain applicants may qualify for special enrollment opportunities, based on, for example, loss of affordable, job-based coverage, income reduction, or other relevant factors.

What Restrictions Does the ACA Impose?

Probably due to extensive publicity of federal Navigator grants and their cumbersome rules, many providers erroneously have assumed that they would have to seek and win a Navigator grant, then comply with those rules, in order to assist this group of patients with their Exchange applications.  In fact, there are five categories of approved assistance personnel, with ACA regulations ranging from Navigator status (highly regulated) to unregistered and unregulated application assistants.  This chart lists major distinctions, with respect to the Federally Facilitated Exchange.

Title Funding Rules
Navigator $54M in 2014 Navigator grants, to be awarded August 15, 2013. Final rules at 45 C.F.R. § 155.205 et seq. are extensive – e.g. limited grant availability, absolute conflict of interest prohibitions, training, examination and recordkeeping requirements.
Non-Navigator Assistance Personnel Available, but not through the ACA. Final rules at 45 C.F.R. § 155.205 et seq. substantially parallel Navigator rules.
Certified Application Counselors None. Final rules at 45 C.F.R. § 155.225 are relatively relaxed, with no conflict of interest bar.  Organizations, including providers, may be authorized to grant CAC status to their employees.
Authorized Representatives None. Final rules at 45 C.F.R. § 155.227 are minimally burdensome.  The applicant (or a court), rather than the Exchange, designates an authorized representative.
None. None. None, as long as no “certified application counselor” representation is made.  See 78 F.R. 42,843 (July 17, 2013).

About $150,000,000 in non-Navigator grants was awarded in July 2013 to health care centers, and to others for distribution to health care centers, to fund their assisted Exchange enrollment of uninsured patients.  Other public and private funding may be available.

Tax-exempt providers subject to the ACA’s Community Health Needs Assessment mandate of 26 U.S.C. § 501r may be able to take credit for such assistance efforts in their CHNA documentation.

What Do State Laws Require?

No enforceable state law may interfere with the operation of federal rules regarding Navigators, Non-Navigator Assistance Personnel, Certified Application Counselors or Authorized Representatives. For example, a state may not require that they be licensed insurance agents.  But the ACA rules adopt by reference a number of generally applicable state laws (state guardianship orders and Medicaid application assistance certifications, for example) and permit states to provide funding for positions not federally funded.

What Should Providers Do?

Providers who want to pursue this opportunity should obtain professional guidance regarding the applicable state and federal rules and then determine whether to provide enrollment assistance through existing staff, new hires, or enrollment assistance contractors.