Health care issues pushed aside amid Congressional budget battles

Image of the interior of the halls of Congress with images of health care workers overlapped.

By Susan Rupe

The new federal fiscal year began on Oct.1, but Congress and the president failed to enact all 12 appropriation bills necessary to fund the government and risked a government shutdown. Instead, lawmakers enacted a continuing resolution to fund federal agencies at current levels through Nov. 17.

What do the appropriations battles dragging on in Congress have to do with health care?

“The longer the appropriations fight goes on and the longer those extensions go on, they crowd out the ability of Congress to tackle other issues such as health care issues,” said Nick Bath, partner at Manatt Health. Bath spoke at a recent Manatt webinar on regulatory and legal trends impacting health care.

“To the extent that Congress and their staff members are trying to cobble together a continuing resolution, it gives them less ability to handle bigger issues,” he said. “It diminishes the likelihood that Congress could tackle prescription drug pricing, for example.”

PBM legislation: One health care issue that could pass

Legislation aimed at pharmacy benefit managers is one area that has bipartisan consensus and “seems to be the health legislation most likely to get to the finish line this year,” said Michael Kolber, partner at Manatt Health.

As of Sept. 12, five congressional committees have advanced legislation to address PBM practices: the House Energy and Commerce Committee; the House Ways and Means Committee; the House Education and the Workforce Committee; the Senate Committee on Health, Education, Labor and Pensions, and the Senate Finance Committee.

Braidwood v. Becerra – what’s next?

Turning to the judiciary side of government, briefs are being filed in the U.S. Court of Appeals for the Fifth Circuit in the case of Braidwood v. Becerra – a case that strikes down free HIV drugs and some cancer screenings under the Affordable Care Act.

In March, U.S. District Court Judge Reed O’Connor, Northern District of Texas, issued a final judgement in a court case challenging the provision of the ACA requiring most private health plans to cover many preventive services without any cost-sharing for their enrollees. Having concluded in September that aspects of the requirement were unconstitutional and violated religious rights, the judge’s remedy in the Braidwood Management v. Becerra imposes new limits on the government's ability to enforce those requirements nationwide.

Kolber said oral arguments in the case could happen later this year or early in 2024 with a decision to be made early next year and a petition to the U.S. Supreme Court likely to follow. He predicted the District Court’s ruling would be affirmed.

Mental health parity in health care

New rules proposed in July would require insurers to study whether their customers have equal access to medical and mental health benefits, and to take action if necessary. The Mental Health Parity and Addiction Equity Act requires that insurers provide the same level of coverage for both mental and physical health care. The proposed rules are subject to a public comment period.

If finalized, the regulations would force insurers to study patient outcomes to make sure the physical and mental care benefits are administered equally. Insurers would have to take into account their provider network and reimbursement rates and whether prior authorization is required for care.

The proposed rules would:

Require health plans to make changes when they are providing inadequate access to mental care. Health plans must evaluate the outcomes of their coverage rules to make sure people have equivalent access between their mental and medical benefits. This includes evaluating the health plan’s actual provider network, how much it pays out-of-network providers, and how often prior authorization is required and the rate at which prior authorization requests are denied.
Make it clear what health plans can and cannot do. The proposed rules will provide specific examples that make clear that health plans cannot use more restrictive prior authorization, other medical management techniques, or narrower networks that make it harder for people to access mental and substance use disorder benefits than their medical benefits. Under the proposed rules, health plans must use similar factors in setting out-of-network payment rates for mental and substance use disorder providers as they do for medical providers.

If finalized, the proposed rules would take effect on the first day of the first plan year beginning on or after Jan. 1, 2025.

Medicaid unwinding continues

The Medicaid continuous enrollment provision expired at the end of March, meaning that millions of those who receive health coverage through Medicaid must have their eligibility redetermined or else lose coverage.

This process of redetermining eligibility for millions of Medicaid beneficiaries is known as “the great unwinding.” As of Sept. 26, about 7.5 million Medicaid and CHIP enrollees have been removed from coverage, according to KFF. More than 40% of those who were removed are children, while 73% of disenrollments were for procedural reasons such as failing to return paperwork on time.

Patti Boozang, senior managing director with Manatt Health, said continued volatility in Medicaid/CHIP enrollment is expected as states take action to pause or delay renewals while they address issues that impact the accuracy of eligibility or enrollment determinations.

States also may request CMS grant them an extension of their 12-month unwinding period to give them adequate time to implement fixes to their eligibility and enrollment systems, and work through their renewal backlogs, Boozang said.

Susan Rupe is managing editor for InsuranceNewsNet. She formerly served as communications director for an insurance agents' association and was an award-winning newspaper reporter and editor. Contact her at [email protected]. Follow her on Twitter @INNsusan.