We’ve paid a lot of attention this year to the bill that would “Repeal and Replace” the Affordable Care Act but that is not the only bill related to heath care that is moving through Congress. In this episode, learn about the other health care bills that have made it just as far as the Repeal and Replace bill, including one that is already law. Also in this episode, we laugh at the Senate for inventing holidays and doing so in the dumbest way possible.
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H.J. Res. 430: Providing for congressional disapproval under chapter 8 of title 5, United States Code, of the final rule submitted by Secretary of Health and Human Services relating to compliance with title X requirements by project recipients in selecting subrecipients.
- Overturns a rule finalized by the Obama Administration that would have prevented States from cutting off Federal funds for “family-planning services”.
Bills In Progress
- Repeals an antitrust exemption that currently applies to health and dental insurance
- Allows antitrust exemptions for life insurance, and property or casualty insurance
- Orders the Executive Branch to use regulations to create a procedure for certifying Association Health Plans (AHPs), which are not regulated like the state small group health insurance markets.
- Association Health Plans and the insurance companies that provide coverage will select the services included and their decisions are exempt from State laws.
- Creates a fund that will pay insurers to continue coverage if the plans disappears.
- The applications for plans will include the States in which the plan intends to do business.
- If the association plan becomes insolvent, the government will become the trustee and can try to fix the plan, cancel the plan entirely, and can invest the plans assets.
- Would become effective one year after being signed into law and enactment regulations would be created by the Secretary of Labor.
- Enacts a statue of limitations on filing health care lawsuits which would be one year after the injury is discovered but never more than three years after the malpractice occurred
- The states can make the statue of limitations shorter
- Limits non-economic damages (such as pain, suffering, physical impairment, disfigurement, and mental anguish) to $250,000, “regardless of the number of parties against whom the action is brought or the number of separate claims or actions brought with respect to the same injury.”
- Actual economic losses (such as medical expenses, past and future earnings losses, and loss of employment) in health care lawsuits will remain unlimited.
- Each guilty party in a health care lawsuit will only be held liable for the percentage of the damages in direct proportion to that party’s percentage of responsibility.
- Doctors who prescribe a medicine that has been approved by the FDA can’t be sued along with manufacturers, distributors, or sellers in product liability lawsuits
- Any statements or conduct expressing “fault” (along with apology, sympathy, etc.) made by a health care provider in regards to an unexpected medical outcome “shall be inadmissible” for any purpose as evidence of an admission of liability.
- The statute of limitations would be effective immediately upon enactment and the limits on damages will be for all lawsuits started after the law is signed.
- Document: H.R. 1628 Obamacare Repeal Reconciliation Act of 2017 Cost Estimate, Congressional Budget Office, July 19, 2017.
- Article: The Washington Post’s New Social Media Policy Forbids Disparaging Advertisers by Andrew Beaujon, Washingtonian, June 27, 2017.
- Document: H.R. 1628 Better Care Reconciliation Act of 2017 Cost Estimate, Congressional Budget Office, June 26, 2017.
- Document: H.R. 1628 American Health Care Act of 2017 Cost Estimate, Congressional Budget Office, May 24, 2017.
- Article: Examining The Final Market Stabilization Rule: What’s There, What’s Not, And How Might It Work? by Timothy Jost, Health Affairs Blog, April 14, 2017.
- Document: Guidance to States on Review of Qualified Health Plan Certification Standards in Federally-facilitated Marketplaces for Plan Years 2018 and Later, Centers for Medicare & Medicaid Services, April 13, 2017.
- Article: Treasury Inspector General Assesses ACA-Related Tax Issues by Timothy Jost, Health Affairs Blog, April 11, 2017.
- Document: Compliance With Title X Requirements by Project Recipients in Selecting Subrecipients by Department of Health and Human Services, Federal Register, Vol. 81, No. 243, December 19, 2016.
- Article: Is the ACA the GOP health care plan from 1993? by Jon Greenberg, Politifact, November 15, 2013.
- American Civil Liberties Union: Public Funding for Abortion
- GovTrack: Health Bills Tracker
- Cornell Law School: 15 U.S. Code § 1013
- Kevin McCarthy Majority Leader website: Health Care Phase 3: The Small Business Health Fairness Act
- ConsumersUnion: Letter to the House Opposing the Small Business Health Fairness Act
- OpenSecrets: Clients lobbying on H.R. 1215
- American Medical Association: Support for House-Passed Bill on Medical Liability
- Google: UnitedHealth Group Stock
- US Senate Financial Disclosure: James Inhofe Stock Purchases
- American Health Insurance Plans: Letter to President Trump
- Dept of Health and Human Services: Letter to Governor regarding Medicaid
- Medicaid: About Section 1115 Demonstrations
- Washington Post: About WP Brandstudio
Sound Clip Sources
Hearing: Rules Committee Hearing, House of Representatives Committee on Rules, February 14, 2017.
Timestamps & Transcripts
- 6:40 Rep. Jim McGovern (MA): I’ll make the point I continue to make about the process. Both of these rules, or protections, went through a long process, and whether you agree with them or not, there was a process. Here we are; the committees with jurisdiction did no hearings on this, have basically—there’ll be no opportunity for review. We know what the outcome is going to be: two more closed rules. So it’s kind of this whole hearing is kind of pointless because, again, the process is going to be the most restrictive that it can be.
- 9:40 Rep. Tim Walberg (MI): As you know, Title X is the only domestic federal program that provides grants for family-planning services. Grants go directly to states and non-governmental organizations, which then distribute money among healthcare providers. Over half of the grantees are state and local governmental agencies, which serve as intermediaries to distribute funding to subgrantees. Prior to this rule, states were free to direct their Title X funds to healthcare providers that did not participate in abortion. When states had this freedom, they were able to choose to invest in women’s health care instead of abortion. The new rule blocks states from restricting grants to potential recipients for reasons other than the ability to provide Title X services. Under this rule, states are prevented from establishing criteria that would eliminate abortion providers from receiving Title X grant money.
Hearing: H.R. 372, the “Competitive Health Insurance Reform Act of 2017”, House of Representatives Judiciary Committee, February 16, 2017.
Timestamps & Transcripts
- 10:15 Rep. John Conyers (MI): I am pleased that the subcommittee’s first hearing of this new Congress is on H.R. 372, the Competitive Health Insurance Reform Act of 2017, which repeals the antitrust exemption in the McCarran-Ferguson Act for the health insurance business. For many years I’ve advocated for such a repeal, so I’m heartened to see the bipartisan nature of the support for this position.
- 11:50 Rep. John Conyers (MI): Congress passed McCarran-Ferguson Act in response to a 1944 Supreme Court decision, finding that antitrust laws applied to the business of insurance, like everything else. Both insurance companies and the states expressed concern about that decision. Insurance companies worried that it would jeopardize certain collective practices like joint-rate setting and a pooling of historical data, and the states were concerned about losing their authority to regulate and tax the business of insurance. To address these concerns, McCarran-Ferguson provided the federal antitrust laws apply to the business of insurance only to the extent that it is not regulated by state law, which has resulted in a broad antitrust exemption. Industry and state revenue concerns, rather than the key goals of protecting competition and consumers, were the primary drivers of the Act. In passing McCarran-Ferguson, Congress, however, initially intended to provide only a temporary exemption and, unfortunately, gave little to consideration to ensuring competition.
- 26:15 Rep. Austin Scott (GA): Be definition, health care and health insurance are not the same thing. But when one insurance company controls such significant portions of the cash flow of all of the providers in a region, no provider can stay in business without a contract with that carrier. Therefore, the insurance company gets to determine who is and who is not able to provide health care: sign a contract with a competing carrier, and we’ll cancel your contract. Accept the lower reimbursement, or we’ll cancel your contract. It’s closer to extortion than negotiation.
Hearing: Legislative Proposals to Improve Health Care Coverage, House Committee on Education and Workforce, March 1, 2017.
- Allison Klausner: American Benefits Council, which represents Fortune 500 companies
- Lydia Mitts: Associate Director of Affordability at Families USA, a consumer advocate org.
- Jay Ritchie: Executive VP of Toko Marine HCC-Stop Loss Group & Chairman of the Self-Insurance Institute of America
- Jon Hurst: President of the Retailers Association of Massachusetts
Timestamps & Transcripts
- 25:50 Rep. Virginia Foxx (NC): Ultimately, they are fighting to maintain government control—government control over the kind of health insurance you can buy, government control over the kind of health insurance employers can and cannot offer workers, government control over the doctors you can see and the doctors you can’t see, and government control over certain healthcare benefits that many individuals may not need. Yet despite the cost and pain inflicted on so many Americans by Obamacare, the answer for some is still more government control.
- 47:35 Lydia Mitts: The second bill I would like to speak to is the Small Business Health Fairness Act. This bill would exempt association health plans from adhering to critical state and federal requirements for small-group coverage. These requirements have benefited small employers and their workers alike. They include protections that prevent plans from charging small employers exorbitantly higher premiums because their employees have poor health, are older, or are disproportionately women. They also include requirements that plans cover comprehensive benefits that meet the needs of a diverse workforce. By allowing association health plans to ignore these key protections, this bill would increase premiums and threaten stable access to comprehensive coverage for many small employers and their workers. Employers with a young workforce that is in pristine health may be able to get lower premiums. However, the rest of small businesses would see coverage become less affordable, whether they sought it through an association or the existing small-group market. On top of this, employees move to association plans would be at risk of facing skimpier coverage that doesn’t cover the care they need.
- 1:41:20 Rep. Suzanne Bonamici (OR): Ms. Mitts, the ACA included, as we know, unprecedented new consumer protections for patients, such as eliminating annual and lifetime limits, preventing insurers from dropping people when they get sick, charging women higher premiums. What will happen to these protections in association health plans? Lydia Mitts: Under the bill put forth to you today, those association health plans would no longer have to comply with so many of those rating protections that have been a huge benefit to many small businesses that prior before the Affordable Care Act actually had a really hard time finding affordable coverage for their employees because they employed employees who actually had healthcare needs, who were maybe older, and the market didn’t work for them before. And so we would move back to a situation where we’d have a segmented market, and people who are healthy, in pristine health, could move into an association health plan. I think the thing that’s important to keep in mind is that that doesn’t mean that association health plan would always be there and work for that small employer. If their workforce got older, claims went up, they might find that that association health plan charges them more, and it’s not a viable option for them anymore. Bonamici: Can you address—I know there’ve been some solvency concerns about some of the association health plans. Can you address that concern as well? Mitts: Yeah, there’s historically been concerns about association health plans not having adequate solvency funds. They have leaner, less rigid requirements than typical health insurance coverage. Partially state oversight was added to that to help address some of these problems, bigger problems, where they were just under ERISA. And when an association plan goes insolvent, their employers and their workers are still left with all of those unpaid medical claims and then on the hook for them. And if the plans are not under state jurisdiction, they won’t be able to benefit from state guaranty funds that help pay those claims, so they’ll be left on the hook for them.
Hearing: H.R. 1215 Hearing-Part 1, House Committee on the Judiciary, February 28, 2017.
Timestamps & Transcripts
- 44:20 Rep. Steve King (IA): One of the drivers of higher healthcare spending is defensive medicine. It’s a very real phenomenon confirmed by countless studies in which healthcare workers conduct many additional costly tests and procedures with no medical value that are charged to the federal taxpayers and to other consumers simply to avoid excessive litigation costs.
- 45:25 Rep. Steve King (IA): They include the following: a bedside sonogram with an “official sonogram” because it’s easier to defend yourself to a jury if you’ve ordered the second sonogram; a CT scan for every child who bumped his head, or her head, to rule out things that can be diagnosed just fine by observation; x-rays that do not guide treatment such as for a simple broken arm; or CT scans for suspected appendicitis that has been perfectly well diagnosed without it. In fact, I have an orthopedic surgeon who has said to me that when he has a knee injury, 97% of the tests that he orders are protection from malpractice. He knows what he’s going to operate on before he actually starts the surgery.
- 51:55 Steve Cohen: And if we want to make health care cheaper, which we should, and make it more affordable, we ought to have a single-payer system. That would make it more affordable. And if that’s the nexus that makes this law applicable for the federal government to usurp the states, and the Chairman said that the nexus was that it makes things cheaper and anything makes health care cheaper is so important that we need to take it away from the states, well, if you’re concerned about cost, you should be for a single-payer system, and that would make it cheaper and take profits away from insurance companies that right now are paying for ads to get people to buy drugs and making immense profits and having their executives draw salaries in the areas of 40 and 50 million dollars. This bill takes away from people who are hurt by medical malpractice in ways that are artificial and wrong, and we should not be on the side of those people who commit medical malpractice and cause injuries to others. With all of that said, I respectfully suggest that the agenda we’re following is not the agenda of the American people at the present time, and it’s the agenda of the American Medical Association, who’s here today, and this is the bill du jour.
Hearing: Tom Price, HHS Fiscal Year 2018 Budget Request, Senate Finance Committee, June 8, 2017.
Timestamps & Transcripts
- 44:37 Sen. Tom Carper (DE): And I like those ideas. I studied a little bit of economics at Ohio State as navy ROTC midshipman. I like market forces. I like trying to harness market forces and make them work. You came up with a good idea in 1993, and I just wish to heck that you would work with us to try to make sure that those good ideas have a chance of working. And the reason why the marketplaces are failing in places, like you mentioned Ohio in your statement, Mr. Chairman, the reason why they’re not working, we’ve basically undermined the individual mandate so that people will know if they really have to get coverage. Young people aren’t. We’ve taken off the training wheels, so to stabilize the marketplaces and insurance companies. They lost their shirts in 2014 because of it. They lost less money in 2015. Got better. They raised their premiums, they raised their copays, they raised their deductibles, and they did better in it. And tells that rather than the marketplaces being a death spiral at the end of 2016, they’re actually recovering, until a new administration came in and said, well, we’re not sure if we’re going to enforce the individual mandate, and, by the way, we don’t know for sure whether they’re going to extend the cost-sharing arrangements. That provides unpredictable lack of certainty for the insurance companies. What do they do? They say, we’re going to raise our premiums more. What you’re destabilizing, the very idea that these guys came up with 24 years ago. Sen. Orrin Hatch (UT): Well, if I could just interrupt for a second. Those were ideas that were against—it was part of the anti-Hillary care bill, and it— Carper: They were good ideas. Tom Price: Well— Carper: And I commend you for them. If my life depended on telling what Hillary care did, I couldn’t tell you. But I know what your bill did, and, frankly, there were good ideas, and now we’re undermining undercutting them. Why? Dr. Price, why? Price: Senator, I appreciate the observation. I would add to that that there are significant challenges out there, and there were so before this administration started. In your state alone, premiums were up 108% before this administration started. In your state alone, there were fewer insurance companies offering coverage on the exchange before this administration started. So what we’re trying to do is to address especially that individual and small-group market that is seeing significant increases in premiums, increases in deduct— Carper: What are you doing? What are you doing to doing? How are you stabilizing the marketplaces? Price: Well, we— Carper: Just give us some ideas. The three Rs. What are you doing on those? Reinsurance, risk adjustment, risk corridors. What are you doing there? Price: We passed it—or we put in place a market-stabilization rule earlier this year that identified the special enrollment periods and the grace periods to make certain that they were more workable for both individuals and for insurance companies. We allowed the states greater flexibility in determining what a qualified health plan was, to try to provide greater stability for the market. We put out word to all governors across this nation on both 1115 and 1332 waivers and suggestions regarding what they can do to allow for greater market stabilization in their states, and we look forward to working with you and other senators to try to make certain that all those individuals, not just in the individual and small-group market but every single American has the opportunity to gain access to the kind of coverage that works for them and their families.
Sen. Mazie Hirono designated February 3rd as “National Wear Red Day.” This is what she wore.
Music Presented in This Episode
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