An Overview of the New Senate Health Bill from Daily Kos

 by mcjoan http://www.dailykos.com/storyonly/2009/12/20/816923/-An-Overview-of-the-New-Senate-Health-Bill?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+dailykos%2Findex+%28Daily+Kos%29&utm_content=Google+Reader

What's good?

• They banned pre-existing conditions for children starting in 2010.
• That annual cap on benefits that was supposed to have been out of the bill but we found out was slipped back in? The one that the blogs raised hell about? It's out, mostly.

  The very first provision of Senate Majority Leader Harry Reid's Manager's Amendment would explicitly prohibit insurers from imposing either annual or lifetime limits.

  A group health plan and a health insurance issuer offering group or individual health insurance coverage may not establish—(A) lifetime limits on the dollar value of benefits for any participant or beneficiary; or (B) except as provided in paragraph (2), annual limits on the dollar value of benefits for any participant or beneficiary.

  The regulation goes into effect in 2014 and prior to that they can still impose them on "non-essential benefits" and "the dollar value of essential benefits only as the secretary shall determine." So there will be government oversight from 2010 until 2014, and up to the Secretary of HHS to determine the outlines of what's allowed.

  (As an aside, here's an interesting catch by Jon Walker. When Reid's office said the CBO demanded this loophole because premiums would go through the roof without it, well, that's not what the CBO says now.)

• Bernie Sanders' amendment to increase funding for Community Health Centers is pretty much an unequivocal good for extending actual care--not just coverage, but care--to people.
• The not quite unequivocal good but improvement is the medical loss ratio, the amount insurers spend out of every premium dollar that doesn't go to care. Rockefeller wanted it set at 90%, it's set at 80% for individual plans, 85% for group plans. Insurers who exceed the limits would have to pay rebates to policyholders. Except, there's this problem as identified by Jon Walker. On page 12 of the bill [pdf]:

  (d) ADJUSTMENTS.—The Secretary may adjust the rates described in subsection (b) if the Secretary determines appropriate on account of the volatility of the individual market due to the establishment of State Exchanges.

  So the Secretary of HHS can gut this requirement at will. But it's better than not having it at all.

• One of the better additions, as identified by Ezra, is better reporting by plans on their practices, claims denials, cost-sharing for out of network practitioners, etc. At least we'll be better informed about the plans we're being forced to pay for.
• There is a critical fix to what was a big hole regarding national plans. Originally the bill national plans in which insurers could sell policies in any of the states in the compact. The insurer would only be subject to the laws and regulations in the state where it was based, and wouldn't have to comply with stricter regs in other states. That's been replaced by the OPM provision.
• One entertaining note, the cosmetic surgery tax has been replaced by taxing indoor tanning salons, which some Twitter wits are calling the Boehner tax. On a more serious, and progressive note, it also increases the Medicare payroll tax by 0.9 points for individuals making more than $200,000 per year and married couples earning above $250,000, a much better financing choice than the excise tax (which is still there).

Many of these issues are ones that the blogosphere, particularly Jon Walker at FDL, have been hammering on for weeks, which is instructive for future efforts. Sometimes when you're being exhorted to get on the "pass the bill" bandwagon, it makes sense to counter with "fix the bill."

What's still very problematic:

• The Nelson amendment is marginally better than Stupak, but stil creates the same battleground, just moving it to the states.
• The excise tax, (which is not in the House bill) which the CBO itself says will affect 19% of people with employer-provided insurance in 2016. In 2019, six years after this bill takes effect, the excise tax will affect one in five taxpayers making $50-$75,000 per year, and the average tax impact on this bracket will rise to $1,100 a year in 2019.

  In addition, the Centers for Medicare and Medicaid Services (CMS, another CBO-like organization) predicts that the excise tax will actually make coverage worse for very little return in savings.

  In reaction to the tax, many employers would reduce the scope of their health benefits. The resulting reductions in covered services and/or increases in employee cost-sharing requirements would induce workers to use fewer services. Because plan benefit values would generally increase faster than the threshold amounts for defining high-cost plans (which are indexed by the CPI plus 1 percent), over time additional plans would become subject to the excise tax, prompting those employers to scale back coverage.

  The savings?

  This excise tax, which would reduce the quality of millions of Americans' health insurance coverage, will technically "bend the cost curve" by just barely 0.3% in 2019. All that for a measly 0.3% reduction in national health expenditures. To give you a comparison, CBO projects that Dorgan's drug re-importation would reduce spending on prescription drugs roughly $100 billion over the next decade (I think the savings could easily end up 4-5 times that amount). A $10 billion reduction in prescription drug spending compared to the total NHE spending last year, which was roughly $2.4 trillion in 2008, would be a 0.4% reduction in NHE.

• The mandate remains, with a larger fine for those who don't purchase coverage attached. Perhaps that's in response to the calculations done showing that it would be cheaper for people to pay the fine than to maintain coverage under the junk insurance plans that are still going to be allowed in the newly "reformed" system. The exemption for those who can prove they can't afford coverage is maintained.
• There is no public option of any kind in the Senate bill, no opt-out, no Medicare buy-in. Just the two national private plans, one of which would be non-profit, that would be overseen by the Office of Personnel Management. The CBO says it's questionable whether "insurers would be interested in offering such plans is unclear, and establishing a nationwide plan comprising only nonprofit insurers might be particularly difficult." Note, even should a national non-profit be set up by an insurer, it is not the equivalent of the public option.
• The primary issues of affordability--what middle class consumers are likely to end up having to continue to pay for healthcare--hasn't been changed and is still too high. The House bill is better in structuring its plans than the Senate--that's one key to push for in conference.

Then there's what's still murky, and that gets back to the insurance reforms and just how effective they will be:

California recently dropped an attempt to enforce its anti-rescission law against a major insurer, saying that it was financially outgunned by the insurer's legal team.

The rescission law, according to the legislation, "shall not apply to a covered individual who has performed an act or practice that constitutes fraud or makes an intentional misrepresentation of material fact as prohibited by the terms of the plan or coverage."

Insurers today routinely claim that patients engaged in "fraud" or "intentional misrepresentation" when dropping them from coverage. Much depends on who defines the terms in the bill.

It won't be the federal government. There will be no federal agency tasked with overseeing the enforcement of the bill's rules. Rather, a Senate leadership aide told reporters in a briefing Saturday, individual states will police the new system.

That's a task the California Department of Managed Health Care was unable to perform when battling Anthem Blue Cross, which has rescinded 1,770 policies since 2004.

"In each and every one of those rescissions, [Blue Cross has] the right to contest each, and that could tie us up in court forever," the department's director, Cindy Ehnes, told The Associated Press. A million-dollar fine was announced in March 2007, but has not been enforced.

If the enforcement for these regulations falls on the individual states, and the individual states will have to litigate them, which could take a very long time in each case. The regulations are unlikely to be uniformly enforced state to state--some of them have extremely proactive insurance commissioners and strong regulatory structures in place, others don't. And in the states that don't, don't expect insurers to end some of these practices out of the goodness of their hearts.

Bottom line, Americans are still going to be forced to buy insurance that for too many people will be unaffordable. As long as that's the case, and until there's a true alternative public option that provides people real choice, the insurance companies shouldn't get that one thing in the legislation they want: the mandate.