RISE looks at the latest headlines involving HHS’ anti-transgender health care rule, price transparency, the impact of COVID-19 on Medicare beneficiaries, prior authorization reform, and the Affordable Care Act.

LGBTQ collations joins lawsuit to block HHS’ anti-transgender health care rule

Lambda Legal and Steptoe & Johnson LLP have filed a lawsuit that challenges the U.S. Department of Health and Human Services’ (HHS) recently published health care discrimination rule that rolls back protections for transgender people by revising Section 1557 of the Affordable Care Act (ACA), which bans discrimination in health care. The new rule, which is scheduled to take effect August. 18th, protects males or females from health care discrimination but not those who are gay or transgender. The lawsuit was filed on behalf of Whitman-Walker Health, the TransLatin@ Coalition and its members (including leaders of affiliated organizations like Arianna’s Center in Florida), Bradbury-Sullivan LGBT Community Center, the Los Angeles LGBT Center, GLMA: Health Professionals Advancing LGBTQ Equality, AGLP: The Association of LGBTQ+ Psychiatrists, and four individual doctors.

“While HHS’s health care discrimination rule cannot change the law, it creates chaos and confusion where there was once clarity about the right of everyone in our communities, and specifically transgender people, to receive health care free of discrimination,” said Omar Gonzalez-Pagan, senior attorney and health care strategist for Lambda Legal, in an announcement. “Today, Lambda Legal, a broad coalition of LGBTQ groups, and the people our clients serve say ‘enough’ to the incessant attacks from the very agency charged with protecting their health and well-being. For years, the Trump administration has utilized HHS as a weapon to target and hurt vulnerable communities who already experience alarming rates of discrimination when seeking care, even now, during a global pandemic. Their actions are wrong, callous, immoral, and legally indefensible. We will fight back.”

The new rule will hurt marginalized communities who already experience barriers to care but especially those who are transgender, non-English speakers, immigrants, people of color and people living with disabilities, added Bamby Salcedo, president and CEO of the TransLatin@ Coalition.

Health care organizations, including The Rise Association, have also opposed the rule, which was released three days prior to a Supreme Court ruling that determined employers cannot fire a person for being gay or transgender.

Federal judge supports HHS in price transparency case

The American Hospital Association (AHA) said it will appeal a federal judge’s decision that supports an HHS rule that mandates hospitals to publish their negotiated rates with insurers and cash discount prices beginning January 1. The AHA said in a statement that the HHS price transparency proposal doesn’t help patients understand their out-of-pocket costs and is a significant burden to hospitals when resources are already stretched thin. In the lawsuit, the AHA argued that the publication of the negotiated rates will chill negotiations between hospitals and insurers. U.S. District Judge Carl Nichols wrote in his decision that the rule only requires the publication of the final agreed-upon price, which is provided to patients in the insurer’s explanation of benefits, and doesn’t require organizations to provide any information about negotiations themselves. “Plaintiffs are essentially attacking transparency measures generally, which are intended to enable consumers to make informed decisions; naturally, once consumers have certain information, their purchasing habits may change, and suppliers of items and services may have to adapt accordingly,” he wrote in the decision. In addition to an appeal, the AHA said it will seek an expedited review of the case.

CMS urges move to value-based care due to COVID-19 impacts on Medicare

The Centers for Medicare & Medicaid Services (CMS) called for a renewed national commitment to value-based care based on Medicare claims data that shows the impact of COVID-19 on the Medicare population. The data reveals that older Americans and those with chronic health conditions are at the highest risk for COVID-19 and confirms long-understood disparities in health outcomes for racial and ethnic minority groups and among low-income populations. According to the data:

  • 325,000 Medicare beneficiaries had a diagnosis of COVID-19 between January 1 and May 16, which translates to 518 COVID-19 cases per 100,000 Medicare beneficiaries
  • Nearly 110,000 Medicare beneficiaries were hospitalized for COVID-19-releated treatment, which equals 175 COVID-19 hospitalizations per 100,000 Medicare beneficiaries
  • End-stage renal disease (ESRD) patients had the highest rate of hospitalization among all Medicare beneficiaries, with 1,341 hospitalizations per 100,000 beneficiaries
  • Patients with ESRD are also more likely to have chronic comorbidities associated with increased COVID-19 complications and hospitalization, such as diabetes and heart failure
  • The second highest rate was among beneficiaries enrolled in both Medicare and Medicaid (dual-eligible) with 473 hospitalizations per 100,000 beneficiaries
  • Blacks were hospitalized with COVID-19 at a rate nearly four times higher than whites
  • Among racial/ethnic groups, Blacks had the highest hospitalization rate, with 465 per 100,000; Hispanics had 258 hospitalizations per 100,000; Asians had 187 per 100,000; and whites had 123 per 100,000
  • Beneficiaries who live in rural areas have fewer cases and were hospitalized at a lower rate than those who live in urban/suburban areas (57 versus 205 hospitalizations per 100,000)
  • Dual eligible beneficiaries also have a higher infection rate of COVID-19 compared to beneficiaries enrolled only in Medicare (1,406 cases per 100,000 beneficiaries compared to 325 bases per 100,000)
  • The rate of COVID-19 cases for dual eligible is higher across all age, sex, and race/ethnicity groups (previous research has shown that these individuals experience high rates of chronic illness, with many having long-term care needs and social risk factors that can lead to poor health outcomes)

CMS said that due to the complexity of these disparities, any solution will require a multi-sectoral approach that includes federal, state, and local governments, community-based organizations, and private industry. One approach is increased implementation of a value-based system that rewards providers for keeping patients healthy and gives consumers information about disease prevention and outcomes.

“Our current health care payment system needs to address the social determinants of health in order to address disparities and improve outcomes. We must change payment structures to create incentives for doctors to focus on the health of the whole person rather than simply the delivery of care,” wrote CMS Administrator Seema Verma in a blog post about the data findings. “We have to hold providers accountable for the outcomes they achieve, and poor health outcomes for minorities or those of a lower socio-economic status is not acceptable. Until we move to a system that incentivizes value over volume and starts paying doctors for better health outcomes, we’ll never be able to adequately address the social determinants of health.”

AMA calls for federal response to insurer inaction on prior authorization reform

Physicians say prior authorization continues to interfere with patient care and can lead to adverse clinical consequences, and they have seen little, if any, progress from insurers toward easing burdensome barriers to patient care, according to a new survey released by the American Medical Association (AMA). The association said that although insurers agreed to take steps to reduce the burden of prior authorization, there has been no movement toward the reform goals and it’s now time for legislative action to address the issue. In 2018, national organizations that represented pharmacist, medical groups, hospitals, and health plans, signed a joint consensus statement that outlined five areas for industry-wide improvements to patient-centered care. Those areas included improved transparency and easy accessibility of prior authorization requirements, continuity of patient care, and automation through standardized processes.

“The sad fact is little progress has been made toward the reform goals,” said AMA President Susan R. Bailey, M.D, in a statement. The health insurance industry’s failure to achieve agreed-upon improvements illustrates a clear need for legislation like The Improving Seniors’ Timely Access to Care Act, H.R. 3107, to rein in prior authorization practices that adversely affect patient health.” The bipartisan bill would require Medicare Advantage plans to abide by the concepts outlined in the consensus statement.

House Democrats reveal new ACA coverage bill

The House Democrats unveiled a new bill that aims to strengthen ACA coverage by lowering health care costs, protecting patients who have preexisting conditions, expanding Medicaid eligibility, and lowering prescription drug prices. Democrats plan to present the Patient Protection and Affordable Care Enhancement Act to the House floor on Monday, June 29. Meanwhile, the White House continues to threaten to dismantle the ACA. The Trump administration was expected to file a legal brief on Thursday that urges the Supreme Court to strike down the ACA, which provides health care coverage for more than 20 million Americans, even while the COVID-19 pandemic continues to sweep through the country.

The legal saga over the ACA began shortly after the law was implemented. A coalition of Republican governors and state attorneys filed a lawsuit arguing that the ACA became unconstitutional when Congress enacted President Donald Trump’s tax overhaul which eliminated the financial penalty of the law’s individual mandate that required most U.S. citizens and legal residents to obtain health insurance or pay a penalty. The Republican coalition claims the ACA cannot stand without the individual mandate and the entire law should be repealed. A group of 18 Democratic attorneys general, along with the House of Representatives, has asked the Supreme Court to hear the case. The high court hasn’t yet scheduled arguments in the case, which industry watchers expect to be heard during the next term beginning in October, but may not be decided before the Presidential election.