New Jersey balance billing protection law is strong on scheduled procedures

Earlier this week I raised a question whether New Jersey's new law protecting insured patients from balance billing requires patients in scheduled procedures to confirm in advance that not only the physician performing the procedure and the facility where it's performed are in network, but that all participating providers, such as anesthesiologists and radiologists, are also in-network. The question was triggered by language like this (Section 5b):

A health care professional who is a physician shall provide the covered person, to the extent the information is available, with the name, practice name, mailing address, and telephone number of any health care provider scheduled to perform anesthesiology, laboratory, pathology, radiology, or assistant surgeon services in connection with care to be provided in the physician’s office for the covered person or coordinated or referred by the physician for the covered person at the time of referral to, or coordination of, services with that provider. The physician shall provide instructions as to how to determine the health benefits plans in which the health care provider participates and recommend that the covered person should contact the covered person’s carrier for further consultation on costs associated with these services.

Other bill language, I noted, seems to indicate that the patient is not responsible for ascertaining that all personnel are in network. 

Maura Collinsgru, health care program director at New Jersey Citizen Action and a prime mover of the NJ for Health Care Coalition, tells me that the onus is not on the patient to make all those determinations:

Bring back the PPACA!

A reader writes: 

It is two years out [from Trump's election] and every major press outlet uses "Obamacare." That just polarizes things.

They should have come up with a better name than Affordable Care Act. That does not even capture modified community ratings – guaranteed issue –essential benefits – private enterprise (the  Republican plan). This is why Medicare for All getting better polling. 

My first thought was, imagine trying to get across "guaranteed issue,"  "modified community ratings" and "essential health benefits" in a bill title. Then a near-forgotten set of syllables popped into my head: the Patient Protection and Affordable Care Act (PPACA). "Patient protection," of course, is all about guaranteeing access to comprehensive coverage to all who want it -- including people with pre-existing conditions, who constitute somewhere between a fifth and half the population.

Nancy Pelosi famously/infamously said "we have to pass the bill so that you can find out what's in it," and people do understand and like the protections for people with pre-existing conditions. A Kaiser Family Foundation poll released today makes that clear:

New Jersey's new balance billing protection law: How complete is the protection?

New Jersey's new law limiting balance billing*, which goes into effect this week, provides patients in fully funded insurance plans -- and in some self-funded plans -- with important protections. The law

• effectively bans balance billing of  insured patients who get emergency hospital care, regardless of whether those who treat them (or even the facility) are out of network.  
• Protects patients who arrange for scheduled procedures from in-network providers at in-network facilities from balance billing by undisclosed out-of-network providers (more on that below).  
• Establishes a "baseball arbitration" dispute resolution system for insurers billed by out-of-network providers. That is, the arbitrator rules in favor of one of the two parties' position rather than splitting the difference. That should put downward pressure on providers' OON billing rates, and so on premiums.
• Includes -- uniquely among state balance billing laws -- an opt-in for self-funded employer plans, which are governed by ERISA, not by state law. The majority of people who are insured through their employer are in self-funded plans.
• Enables balance-billed patients insured via a self-funded plan that does not opt in to initiate arbitration with a balance billing OON provider. 

That's a pretty strong set of protections, with creative workarounds the gigantic impediment to state protection on this front: the fact that self-funded plans are not subject to state insurance regulation wth regard to balance billing (and many other things).  The bill was fruit of a ten-year struggle, and I'm grateful (e.g. to its primary and co-sponsors, including Sen. Joseph Vitale) for its passage.

I'm somewhat troubled, however, by its mechanism for preventing balancing billing by out-of-network providers -- e..g, anesthesiologists, radiologists, pathologists, and assistant surgeons-- participating in a scheduled procedure at an in-network facility when the primary physician is also in network. The onus appears to be on the patient to do a lot of checking. Or maybe not. The text seems to be ambiguous on this front.

NHIS puts individual market angst in perspective

The Kaiser Family Foundation reports that individual market enrollment dropped by about 2 million from the first quarter of 2017 to the first quarter of 2018. Medicaid/CHIP enrollment is down by about 1 million in the same period, to 73.8 million in April of this year (preliminary count*).

Together those reported drops, if accurate, would account for about 1% of the U.S. population under age 65.  Yet according to the preliminary results of the National Health Interview Survey (NHIS) for the first quarter of 2018, released this week, the uninsured population has not changed significantly since 2017.  In fact, the percentage of the total population that is uninsured has downticked from 9.1% to 8.8%, and among the under-65 population from 10.7% to 10.3%, though those changes are not deemed statistically significant.

Small enrollment shifts are not so small: Zooming in from the GAO's 30,000 foot view of the ACA marketplace

It struck me, looking at the big-picture breakouts of 2017-2018 enrollment in healthcare.gov states presented in the GAO report, that shifts that I have puzzled over under a microscope look small in aggregate.

Viewed the other way round, changes that look small in aggregate mask some significant shifts among enrollees in ethnicity, income and age. A few examples below, mostly from the healthcare.gov states that the GAO focused on (while exposing HHS's willful management failures). I'm leaving aside a not-so-small shift in metal level selection that I've pretty much beaten to death, e.g., yesterday.

1. Subsidized vs. unsubsidized enrollment 

A one-point drop in the overall share of enrollees who are unsubsidized doesn't sound like much. But viewed in itself, unsubsidized enrollment was down 9.7% on healthcare.gov in 2017, compared to 5% for all enrollment. For many of the unsubsidized, moreover, the sticker shock triggered by premium increases in excess of 30% seems to have struck late. Among the unsubsidized, effectuated enrollment in all states as of March 15 was a stunning 29% below the tally as of the end of open enrollment. For the market as a whole, the drop was 9.4%; for the subsidized, it was just 5.5%. Year-over-year, effectuated enrollment  among the unsubsidized for all states as of March was down 17% .

GAO highlights the silver load offset to HHS sabotage

The GAO's report on HHS's performance in managing Open Enrollment for 2018 on HealthCare.gov hits HHS hard for dereliction of its duty to maximize enrollment in the ACA marketplace. The report lambastes HHS for using bad data to gut navigator funding; for ignoring performance data while constructing a bogus rationale for gutting advertising; and for refusing to set enrollment targets that would enable the agency to target efforts where performance was lagging.

These failures, the report asserts in measured bureaucratese,

could affect HHS's ability to meet its objective, such as its objectives of improving Americans' access to healthcare.

Unspoken is that policies instituted by HHS leadership did advance Trump's goal: to highlight and exacerbate the flaws of a program created by Democrats.

The report also includes stats that highlight the effects of "silver loading" the cost of Cost Sharing Reduction (CSR) after Trump cut off direct reimbursement of insurers for that mandatory benefit, forcing them to price it into premiums. Since CSR is available only with silver plans, most states allowed insurers to price it into silver plans only. Since premium subsidies are keyed to a silver benchmark, silver loading increased subsidies, creating discounts in bronze and gold plans. Here is a graphic representation of the discounts thus created:

Alex Azar's poison pitch to the unsubsidized uninsured

Charles Gaba is out with a magisterial take-down of HHS Secretary Alex Azar's op-ed touting the Trump administration's promotion of  medically underwritten 'short-term" health plans (now with terms of up to 364 days, renewable twice) as a solution for those who have been priced out of the ACA marketplace.

Gaba points out that in decrying the high cost of ACA-compliant plans for the unsubsidized, Azar ignores:

• The extent to which various forms of Trump administration sabotage have driven the huge premium increases of the past two years.
• The premium growth trend in the pre-ACA individual market.
• The average actuarial value of pre-ACA plans compared to ACA-compliant plans.
• The likely impact of a barely-regulated short-term market on the ACA risk pool.
• The gross inadequacies of short-term plans now on the market.

I want to focus on two other major sleights of hand Azar indulges in. The first concerns the target market potentially served by short-term plans, and the second, the source of their affordability.

Tom MacArthur gutted ACA protections for people with pre-existing conditions. Can Andy Kim make the charge stick?

Axios offers an interesting first look at a battle that will play out in a lot of Congressional districts defended by Republicans who voted for the ACA repeal bill, the American Health Care Act (AHCA) as amended by Tom MacArthur (NJ-3).

Democrats will say the incumbent voted to gut protections for people with pre-existing conditions -- that is, the ACA rules forbidding insurers in the individual market to base premiums on an applicant's medical condition or history. Incumbents -- e.g. MacArthur, who introduced the amendment that opened the door to medical underwriting -- will say not so:

Sen. Heidi Heitkamp of North Dakota, one of the most vulnerable Democrats up for re-election this year, is out with a new ad that claims her opponent, Rep. Kevin Cramer, voted to gut protections on pre-existing conditions. Axios' Caitlin Owens has the lowdown:

• Naturally, Cramer doesn't like the ad. The North Dakota GOP accused Heitkamp of telling "repeated lies" about his stance on pre-existing conditions.

Good News in New Jersey: CMS approves state reinsurance waiver

Some good ACA news out of New Jersey: CMS has approved the state's reinsurance waiver proposal, designed to reduce premiums by 15% in 2019.

The bill mandating pursuit of this waiver was paired with a bill establishing a state individual mandate, which according to the state Dept. of Banking and Insurance reduced requested rate increases by about 7%.  Taken together, the mandate and reinsurance program will push 2019 premiums more than 20% below where they would have been absent these two programs and down an average of about 9% from this year. That in the wake of average increases of 22% for 2018.

It's worth tallying the various ways New Jersey has girded its individual market against Republican sabotage.  The state

Surprise! ACA marketplace sabotage hit the most vulnerable hard

I fear I buried the lead somewhat in yesterday's look at how ACA enrollment losses were distributed among income groups in states that refused the ACA Medicaid expansion.

The distribution in the 18 nonexpansion states that use HealthCare.gov looked a lot like the distribution in all 39 HealthCare.gov states -- not surprising, since 69% of HealthCare.gov enrollees are concentrated in those states -- a fact kind of astonishing in itself. But enrollment is inflated in nonexpansion states because, thanks to a lucky ACA drafting error, eligibility for subsidies in those states begins at 100% of the Federal Poverty Level (FPL), whereas in expansion states it begins at 138% FPL. Those below that threshold in expansion states are eligible for Medicaid.

As I did note in the prior post, fully 36%* of enrollees in nonexpansion states, about 2.2 million as of the end of Open Enrollment, have incomes that would qualify them for Medicaid if their states accepted the expansion (as Virginia has for 2019, and as Maine has, though still blocked by Governor LePage's obstruction). Within that population, or rather, within the somewhat wider 100-150% FPL band broken out by CMS, enrollment dropped 6% in those states in 2018. That's a loss mainly among people who should be in Medicaid, and who are likely to be uninsured if they pass up marketplace enrollment, and for whom the marketplace is a relatively affordable deal -- premiums capped at 2% of income for CSR-enhanced plans with a 94% actuarial value. (Ironically, the Medicaid work requirements imposed by some expansion states will likely uninsure more people than the cuts in enrollment assistance and outreach in the marketplace.)

More broadly, the relatively modest top line of ACA on-exchange enrollment loss in 2018 -- about 4% -- shouldn't blind us to the fact that the loss was close to double that among people with incomes in the 100-200% FPL range (7.5% in HealthCare.gov as a whole). For that population, the core marketplace offering hasn't changed much, although fixed actuarial values mean a bit more out-of-pocket expense every year, and reduced competition may reduce quality of choice in many markets.